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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/10/2024 has been entered.
Election/Restrictions
Applicant’s election without traverse of the invention of Group I, claims 1-17 and 21, and the species of fluopyram and hydroxypropyl methylcellulose in the reply filed on 12/14/2023 is acknowledged.
Claim Status
The amendment of 12/10/2024 has been entered. Claims 1, 3, 5-6, and 8-21 are pending in this US patent application. Claims 18-20 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Claims 5-6 and 8 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 12/14/2023.
Claims 1, 3, 9-17, and 21 are currently under examination and were examined on their merits.
Claim Interpretation
Claim 1 recites a polymeric crystal growth inhibitor “that inhibits crystal growth of the succinate dehydrogenase inhibitor”. Claim 21 recites a composition “to control or reduce fungal spores and/or nematode infestation in a plant or crop”. These limitations represent statements of intended use. A statement of intended use that does not constitute a distinct definition of any of the claimed invention’s limitations is of no significance to claim construction. See MPEP § 2111.02 (II). The Examiner notes that the claims do not recite any particular degree of inhibition of crystal growth (claim 1) or control or reduction of fungal spores and/or nematode infestation (claim 21). As such, a prior art polymeric crystal growth inhibitor must merely have the capability to inhibit crystal growth of a succinate dehydrogenase inhibitor to read on the polymeric crystal growth of claim 1, and a composition comprising a succinate dehydrogenase inhibitor and a polymeric crystal growth inhibitor must merely have the capability to control or reduce fungal spores and/or nematode infestation in a plant or crop in order to read on the composition of claim 21. Applicant has elected fluopyram and hydroxypropyl methylcellulose as the succinate dehydrogenase inhibitor and polymeric crystal growth inhibitor, respectively. As such, any composition containing fluopyram and hydroxypropyl methylcellulose will be interpreted as intrinsically having the ability to inhibit fluopyram crystal growth to at least some degree and to control or reduce fungal spores and/or nematode infestation in a plant or crop to at least some degree.
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, 9-17, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over US patent application 2012/0088657 filed by Brandl, published 04/12/2012.
Brandl teaches a product for use in agriculture (see entire document, including page 1, paragraph 0001). The product is contained in a capsule, which is preferably hydroxypropyl methylcellulose, and is made to disintegrate in the presence of humidity (page 1, paragraph 0011; cf. claims 9 and 21; cf. part b) of claim 1; the Examiner notes that, once the capsule has disintegrated in the presence of humidity and the plant is watered, the composition will intrinsically be a suspension as recited in claims 1 and 21). The capsules contain agrochemical compounds, including herbicides, nematicides, fungicides, and insecticides (page 2, paragraph 0017; cf. claim 17). A suitable nematicide is a nematicidically active biological organism, such as Bacillus subtilis (page 2, paragraph 0021; cf. claims 10-11). A suitable fungicide is fluopyram (pages 2-3, paragraph 0023; cf. claims 1, 3, and 21). The composition may include additional agrochemical compounds, such as pesticides (page 3, paragraph 0024; cf. claim 17). The capsules are preferably 10-30 mm in length and 10-25 mm in diameter (page 1, paragraph 0011; cf. claims 12 and 15-16). The amount of the agrochemical compound in the capsule can be a sufficiently low amount that the agrochemical does not damage seeds or an amount that exceeds the maximum amount of the compound used for treating seeds (page 2, paragraph 0016; cf. claims 12-14).
However, Brandl does not explicitly teach a composition comprising fluopyram and hydroxypropyl methylcellulose, the additional presence of Bacillus subtilis and other herbicides, nematicides, fungicides, or insecticides, or the specific amounts in the units and ratios recited in instant claims 12-16.
While Brandl does not explicitly teach a composition comprising fluopyram and hydroxypropyl methylcellulose, the additional presence of Bacillus subtilis in the composition, or the presence of other herbicides, nematicides, fungicides, or insecticides in the composition, it would have been obvious to one of ordinary skill in the art to make such a composition based on the teachings of Brandl because Brandl suggests the incorporation of all of these elements into a composition for use in agriculture and the intrinsic production of a suspension by the disintegration of the tablet in the presence of humidity/water. One of ordinary skill in the art would have had a reasonable expectation that combining the fluopyram, hydroxypropyl methylcellulose, Bacillus subtilis, and other agrochemical compounds of Brandl into one composition as taught by Brandl and then watering a plant to which the composition had been administered would successfully result in the production of a composition that has the specific advantages of reduced dust, flexible addition of other components, increased safety, simpler and more efficient storage, simple application, and separation of phytotoxic compounds from seeds as recited in paragraphs 0005-0010 of Brandl.
While Brandl does not teach that the composition contains the specific amounts and ratios of fluopyram and hydroxypropyl methylcellulose recited in instant claims 12-16, the recited amounts and ratios would be within the realm of routine experimentation. Generally, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. "[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). See MPEP § 2144.05 part II A. It would have been obvious to one of ordinary skill in the art at the time Applicants' invention was made to determine all operable and optimal concentrations of fluopyram in the agrochemical composition because the amount of a fungicide, such as fluopyram, in a composition applied to plants is an art-recognized, result-effective variable known to impact the fungicidal effect of the composition, which would have been optimized in the art to provide the desired fungicidal effect. It would have been obvious to one of ordinary skill in the art at the time Applicants' invention was made to determine all operable and optimal concentrations of hydroxypropyl methylcellulose in the agrochemical composition because the amount of hydroxypropyl methylcellulose in a capsule is an art-recognized, result-effective variable known to impact the size and properties of the capsule, which would have been optimized in the art to provide the desired properties and size of the capsule.
Therefore, claims 1, 3, 9-17, and 21 are rendered obvious by Brandl and are rejected under 35 U.S.C. 103.
The Supreme Court has acknowledged:
When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation…103 likely bars its patentability…if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond that person’s skill. A court must ask whether the improvement is more than the predictable use of prior-art elements according to their established functions……the combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results (see KSR International Co. v. Teleflex Inc., 82 USPQ2d 1385 U.S. 2007) (emphasis added).
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 was 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.
Response to Arguments
Applicant has traversed the above rejection of the claims under 35 U.S.C. 103 as being unpatentable over Brandl. Applicant states that the amended claims require that the composition be a suspension, which Applicant states is not taught by Brandl (remarks, page 4). This argument has been fully considered but has not been found persuasive.
The Examiner notes that, as discussed above, Brandl teaches capsules that disintegrate easily in the presence of humidity/water. As such, when the capsules of Brandl disintegrate in the presence of water (such as when the plant is watered, which will necessarily occur during agricultural processes), the composition will intrinsically form a suspension because it has disintegrated into the water.
Therefore, the Examiner has maintained the rejections presented above.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Erin M. Bowers, whose telephone number is (571)272-2897. The examiner can normally be reached Monday-Friday, 7:30-5:00.
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/Erin M. Bowers/Primary Examiner, Art Unit 1653 04/16/2025