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 .
Acknowledgement is made to Applicant’s response filed 09/25/2026.
Claims 1, 13, and 16 remain pending.
Claim 1 is currently amended.
Claims 2-12, 14, 15, and 17-22 remain cancelled.
Claim 16 remains withdrawn.
Claims 1 and 13 are currently under consideration to the extent that they read upon Applicant’s elected species.
It is further noted that in the process of searching Applicant’s elected species, the Examiner previously came across art that read upon the species of captan. For the sake of compact prosecution, the species requirement was expanded to said species and art was applied.
Rejections Maintained and Made Again in view of Applicant’s Amendments
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 (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claim(s) 1 and 13 (all claims currently under consideration) is/are rejected under 35 U.S.C. 103 as being unpatentable over Lohmann et al (WO 2014095994)(IDS Reference).
Lohmann teaches a three-component composition comprising component I, which can be selected from the group including I-3 (mefentrifluconazole), component II, which can be selected from the group including fluoxastrobin, and component III, selected from the group consisting of mancozeb, captan, and coppers (see entire document, for instance, page 79, lines 23-31). Lohmann further teaches that adjuvants can be present, such as those that have no pesticidal activity, but improve biological performance, such as surfactants, minerals, vegetable oils, and other auxiliaries (see entire document for instance, page 299, lines 13-17). The ratio of the three active components in a three component composition (components I : II : III) are taught as being preferably 1:2-2:1 to 1:2-2:1 to 1:2-2:1 (see entire document, for instance, the paragraph bridging pages 76 and 77). Lohmann further teaches that the combination of I-3 (mefentrifluconazole) and fluoxastrobin is known to achieve synergy (see entire document, for instance, page 352). Lohmann additionally teaches that the composition is used for the control of rice pathogens, and particularly Rhizoctonia solani (see entire document, for instance, page 81, lines 27-28).
Lohmann, while teaching the instantly claimed components, does not expressly give an example with all three actives and embodiments with and without the adjuvant present. Further, while expressly teaching preferred amounts that fall within the claimed ranges, does not give an example utilizing amounts in the claimed ranges.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the instantly claimed invention to utilize an adjuvant with the composition of mefentrifluconazole, fluoxastrobin, and captan, mancozeb, or copper. One would have been motivated to do so since Lohmann directly teaches that said components can be utilized together in a three-component composition, wherein further adjuvants are taught as being utilized to help improve the biological performance of the composition. There would be a reasonable expectation of success since Lohmann directly teaches the components and adjuvants are useful. As such, Lohmann teaches a three-component composition, and also motivates one of ordinary skill to utilize additional adjuvants if desired.
It further would have been obvious to one of ordinary skill in the art, before the effective filing date of the instantly claimed invention to utilize components I, II, and III in a ratio of 1:2-2:1 to 1:2-2:1 to 1:2-2:1 since Lohmann expressly teaches said amounts as preferred for compositions comprising three active agents. There would be a reasonable expectation of success since Lohmann teaches the components together in a three-component composition, and states that preferred amounts of the components in a three-component composition are 1:2-2:1 to 1:2-2:1 to 1:2-2:1.
Response to Arguments
Applicant's arguments filed 09/25/2026 have been considered and are not found persuasive. Specifically, Applicant argues that the prior art does not teach the synergistic effect in the inhibition of Rhizoctonia solani. Applicant’s argument is not found persuasive. Specifically, the prior art would lead one of ordinary skill in the art to utilize the combination for the treatment of Rhizoctonia solani, and would further provide one of ordinary skill in the art with a reasonable expectation of synergy in light of the teachings of Lohmann. It is noted that the Instant Specification does not provide any guidance different from the prior art for one to arrive at a synergistic combination comprising mefentrifluconazole, fluoxastrobin, and at least one of captan, copper, or mancozeb. If Applicant’s argument were found persuasive regarding the prior art, then there would necessarily need to be a New Matter rejection for the instant claims since the instant claims and the prior art have the same degree of specificity with regard to support. However, since the Examiner believes that the instant claims do provide support, the prior art would likewise have support, and Applicant’s arguments are not found persuasive. It is noted that unlike the instant specification, Lohmann teaches that mefentrifluconazole and fluoxastrobin are synergistic, which motivates one of ordinary skill in the art to specifically select these two components. No such teaching of synergy of mefentrifluconazole and fluoxastrobin was present in the Application as originally filed.
For at least these reasons, as well as the reasons previously articulated on the record, Applicant’s arguments are not found persuasive. It is noted that one of ordinary skill in the art, following the guidance of Lohmann would have arrived at the instantly claimed invention.
Claim(s) 1 and 13 (all claims currently under consideration) is/are rejected under 35 U.S.C. 103 as being unpatentable over Lohmann et al (WO 2014095994)(IDS Reference) and Shengzhao et al (CN 101595882).
Lohmann teaches a three-component composition comprising component I, which can be selected from the group including I-3 (mefentrifluconazole), component II, which can be selected from the group including fluoxastrobin, and component III, selected from the group consisting of mancozeb, captan, and coppers (see entire document, for instance, page 79, lines 23-31). Lohmann further teaches that adjuvants can be present, such as those that have no pesticidal activity, but improve biological performance, such as surfactants, minerals, vegetable oils, and other auxiliaries (see entire document for instance, page 299, lines 13-17). The ratio of the three active components in a three component composition (components I : II : III) are taught as being preferably 1:2-2:1 to 1:2-2:1 to 1:2-2:1 (see entire document, for instance, the paragraph bridging pages 76 and 77). Lohmann further teaches that the combination of I-3 (mefentrifluconazole) and fluoxastrobin is known to achieve synergy (see entire document, for instance, page 352). Lohmann additionally teaches that the composition is used for the control of rice pathogens, and particularly Rhizoctonia solani (see entire document, for instance, page 81, lines 27-28).
Lohmann, while teaching the instantly claimed components, does not expressly give an example with all three actives with and without the adjuvant present. Further, while expressly teaching preferred amounts that fall within the claimed ranges, does not give an example utilizing amounts in the claimed ranges. Additional, while teaching the synergy of mefentrifluconazole and fluoxastrobin does not expressly teach the synergy of fluoxastrobin and captan.
Shengzhao teaches that the combination of captan and fluoxastrobin have synergy in a ratio of 50:1 – 1:50 (see entire document, for instance, page 15, second to last paragraph).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the instantly claimed invention to utilize an adjuvant with the composition of mefentrifluconazole, fluoxastrobin, and captan, mancozeb, or copper. One would have been motivated to do so since Lohmann directly teaches that said components can be utilized together in a three-component composition, wherein further adjuvants are taught as being utilized to help improve the biological performance of the composition. There would be a reasonable expectation of success since Lohmann directly teaches the components and adjuvants are useful. One would have been particularly motivated to utilize captan with the fluoxastrobin since Shengzhao teaches that captan and fluoxastrobin have synergy. As such, Lohmann and Shengzhao teach a three-component composition, and also motivates one of ordinary skill to utilize additional adjuvants if desired.
It further would have been obvious to one of ordinary skill in the art, before the effective filing date of the instantly claimed invention to utilize components I, II, and III in a ratio of 1:2-2:1 to 1:2-2:1 to 1:2-2:1 since Lohmann expressly teaches said amounts as preferred for compositions comprising three active agents. There would be a reasonable expectation of success since Lohmann teaches the components together in a three-component composition, and states that preferred amounts of the components in a three-component composition are 1:2-2:1 to 1:2-2:1 to 1:2-2:1.
Response to Arguments
Applicant's arguments filed 09/25/2026 have been considered and are not found persuasive. Specifically, Applicant argues that the prior art does not teach the synergistic effect in the inhibition of Rhizoctonia solani. Applicant’s argument is not found persuasive. Specifically, the prior art would lead one of ordinary skill in the art to utilize the combination for the treatment of Rhizoctonia solani, and would further provide one of ordinary skill in the art with a reasonable expectation of synergy in light of the teachings of Lohmann. It is noted that the Instant Specification does not provide any guidance different from the prior art for one to arrive at a synergistic combination comprising mefentrifluconazole, fluoxastrobin, and at least one of captan, copper, or mancozeb. If Applicant’s argument were found persuasive regarding the prior art, then there would necessarily need to be a New Matter rejection for the instant claims since the instant claims and the prior art have the same degree of specificity with regard to support. However, since the Examiner believes that the instant claims do provide support, the prior art would likewise have support, and Applicant’s arguments are not found persuasive. It is noted that unlike the instant specification, Lohmann teaches that mefentrifluconazole and fluoxastrobin are synergistic, which motivates one of ordinary skill in the art to specifically select these two components. No such teaching of synergy of mefentrifluconazole and fluoxastrobin was present in the Application as originally filed.
Applicant further argues that Shengzhao does not cure the alleged deficiencies of Lohmann, wherein Applicant believes Shengzhao is non-analogous art. Applicant's argument is not found persuasive since Applicant's assertions regarding Applicant's alleged deficiencies of Lohmann were not found persuasive above. Further, regarding the assertion that the teachings are non-analogous, it is noted that Shengzhao teaches a property of captan and fluoxastrobin with regard to their synergy together against bacterium, wherein one of ordinary skill would be motivated to utilize said combination in the composition in Lohmann since Lohmann already teaches said components, and teaches captan in a list of about 20, wherein Shengzhao merely provides a teaching that would further motivate one of ordinary skill in the art to select captan from the list already taught in Lohmann. It is noted that the prior art teaches that mefentrifluconazole and fluoxastrobin are synergistic and also that captan and fluoxastrobin are synergistic. Therefore, one of ordinary skill in the art, looking at Lohmann and Shengzhao would have been motivated to select a composition comprising mefentrifluconazole, fluoxastrobin, and captan and would have expected synergistic results. For at least these reasons, Applicant's argument is not found persuasive.
For at least these reasons, as well as the reasons previously articulated on the record, Applicant’s arguments are not found persuasive. It is noted that one of ordinary skill in the art, following the guidance of Lohmann would have arrived at the instantly claimed invention.
Conclusion
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 TREVOR M LOVE whose telephone number is (571)270-5259. The examiner can normally be reached M-F typically 6:30-3.
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/TREVOR LOVE/Primary Examiner, Art Unit 1611
