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 11/04/2025.
Claims 1, 7, 13, 16, and 20 remain pending.
Claim 1 is currently amended only to include the limitation of claim 7.
Claims 2-6, 8-12, 14, 15, 17-19, 21, and 22 remain cancelled.
Claim 16 remains withdrawn.
Claims 1, 7, 13, and 20 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.
It is also noted that the amendment to claim 1 incorporated the limitations of claim 7, wherein it appears that Applicant forgot to cancel the claim which was rolled into claim 1. As such, claim 7 is rejected under 112 (d) / 112 4th for failure to further limit claim 1.
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 7 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. Applicant rolled claim 7 into claim 1, however, it appears that Applicant forgot to cancel claim 7. 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.
Maintained Rejections
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, 7, 13, and 20 (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, while teaching the instantly claimed components, does not expressly give an example with all three actives and 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.
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 02/18/2026 have been considered and are not found persuasive. Specifically, Applicant argues in the response filed 02/18/2026 that Applicant does not agree that Lohmann provides motivation for one of ordinary skill in the art to select the instantly claimed components. Applicant's argument is not found persuasive. Specifically, Lohmann expressly teaches a three active component composition, wherein the prior art also expressly indicates that two of Applicant's elected species, namely, the mefentrifluconazole and fluoxastrobin are synergistic together motivating one of ordinary skill in the art to utilize said two, and additionally, teaches that component III is selected from a short list of 20 options (see for instance, page 79, lines 23-31). 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, 7, 13, and 20 (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, while teaching the instantly claimed components, does not expressly give an example with all three actives and 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.
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 02/18/2026 have been considered and are not found persuasive. Specifically, Applicant argues in the response filed 02/18/2026 that Applicant does not agree that Lohmann provides motivation for one of ordinary skill in the art to select the instantly claimed components. Applicant's argument is not found persuasive. Specifically, Lohmann expressly teaches a three active component composition, wherein the prior art also expressly indicates that two of Applicant's elected species, namely, the mefentrifluconazole and fluoxastrobin are synergistic together motivating one of ordinary skill in the art to utilize said two, and additionally, teaches that component III is selected from a short list of 20 options (see for instance, page 79, lines 23-31). It is noted that one of ordinary skill in the art, following the guidance of Lohmann would have arrived at the instantly claimed invention.
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.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany Barham can be reached at 5712726175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/TREVOR LOVE/Primary Examiner, Art Unit 1611