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, 13, and 16 remain pending.
Claims 1 and 13 are currently amended.
Claims 2-12, 14, 15, and 17-22 are 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Claim 16 remains withdrawn.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.
Withdrawn Rejection and/or Objections
The rejection of claim 7 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of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends is withdrawn in view of Applicant’s cancellation of said claim.
The rejection of claims 7 and 20 under 35 U.S.C. 103 as being unpatentable over Lohmann et al (WO 2014095994) is withdrawn in view of Applicant’s cancellation of said claims.
The rejection of claims 7 and 20 under 35 U.S.C. 103 as being unpatentable over Lohmann et al (WO 2014095994) and Shengzhao et al (CN 101595882) is withdrawn in view of Applicant’s cancellation of said claims.
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 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, 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 06/29/2026 have been considered and are not found persuasive. Specifically, Applicant argues in the response filed 06/29/2026 that Lohmann does not teach a single, focused composition, but rather, a highly expansive combinatorial framework (notably, very similar to Applicant’s Specification). Applicant further argues that Lohmann does not provide any working examples with the three components (notably, very similar to Applicant’s Specification which lacks any working examples with fluoxastrobin). Specifically, should Applicant believe that Lohmann does not provide sufficient guidance for arriving at the instantly claimed invention, neither does the instant specification provide support for the instantly claims. Since the Examiner believes that the instant claims are enabled by the instant specification, the same standard is being extended to the prior art, though it is noted that the prior art provides a greater level of direction for selecting the three components than the instant specification. See for instance page 79, lines 23-39 which expressly states a three component composition comprising 1) component I, 2) fluoxastrobin (from a short list of 8 specific components), and 3) captan (from a short list of 20 specific components). This teaching is more specific than anything provided in the instant specification. Further, 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 the range of the prior art is broadly taught to the composition, and not to the instantly claimed components. It is noted that the only support Applicant has in the Specification for their range of (1-80):(1-80):(1-80) is found in the phrase “[0491] In an embodiment, the constituent fungicides of the combination of the present invention may be admixed in ratio of (1-80):(1-80):(1-80) of the Fluconazole; multi-site fungicide and the third fungicide respectively,” and “The fungicidal combination as claimed in claim 1, wherein fluconazole, the multi-site fungicide and the third fungicide are present in a ratio of (1-80):(1-80):(1-80).” It is noted that the instant claims expressly exclude fluconazole from the composition (based on the consisting of language). If Applicant’s argument that the prior art teaching that components I, II, and III are in ratios of 1:2-2:1 to 1:2-2:1 to 1:2-2:1 (which is directly taught) is insufficiently supported, Applicant’s own claims are far less supported. However, 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, 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 06/29/2026 have been considered and are not found persuasive. Specifically, Applicant argues in the response filed 06/29/2026 that Lohmann does not teach a single, focused composition, but rather, a highly expansive combinatorial framework (notably, very similar to Applicant’s Specification). Applicant further argues that Lohmann does not provide any working examples with the three components (notably, very similar to Applicant’s Specification which lacks any working examples with fluoxastrobin). Specifically, should Applicant believe that Lohmann does not provide sufficient guidance for arriving at the instantly claimed invention, neither does the instant specification provide support for the instantly claims. Since the Examiner believes that the instant claims are enabled by the instant specification, the same standard is being extended to the prior art, though it is noted that the prior art provides a greater level of direction for selecting the three components than the instant specification. See for instance page 79, lines 23-39 which expressly states a three component composition comprising 1) component I, 2) fluoxastrobin (from a short list of 8 specific components), and 3) captan (from a short list of 20 specific components). This teaching is more specific than anything provided in the instant specification. Further, 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 the range of the prior art is broadly taught to the composition, and not to the instantly claimed components. It is noted that the only support Applicant has in the Specification for their range of (1-80):(1-80):(1-80) is found in the phrase “[0491] In an embodiment, the constituent fungicides of the combination of the present invention may be admixed in ratio of (1-80):(1-80):(1-80) of the Fluconazole; multi-site fungicide and the third fungicide respectively,” and “The fungicidal combination as claimed in claim 1, wherein fluconazole, the multi-site fungicide and the third fungicide are present in a ratio of (1-80):(1-80):(1-80).” It is noted that the instant claims expressly exclude fluconazole from the composition (based on the consisting of language). If Applicant’s argument that the prior art teaching that components I, II, and III are in ratios of 1:2-2:1 to 1:2-2:1 to 1:2-2:1 (which is directly taught) is insufficiently supported, Applicant’s own claims are far less supported. However, Applicant’s arguments are not found persuasive.
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.
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
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
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