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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 04/22/2026 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 04/22/2026 has been entered. Claims 1, 3, 5-6, 8-14, 16-20, and 22-25 are pending in this US patent application. Claims 18-20 and 23 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Claims 5-6 and 8 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim.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, 9-14, 16-17, 22, and 24-25 are currently under examination and were examined on their merits.
Withdrawn Rejections
The rejections of the claims under 35 U.S.C. 103 as being unpatentable over Lillard as set forth in the previous Office action are withdrawn in light of the amendment of 04/22/2026, which added limitations to claim 1. Applicant’s arguments that the previous rejections did not address all of the newly added limitations in amended claim 1 have been found persuasive.
Claim Interpretation
Claim 1 recites a polymeric crystal growth inhibitor “that inhibits crystal growth of the succinate dehydrogenase inhibitor”. 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). 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. 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, 9-14, 16-17, 22, and 24-25 are rejected under 35 U.S.C. 103 as being unpatentable over US patent application publication 2013/0203592 filed by Fischer et al., published 08/08/2013, in view of US patent number 4614545 granted to Hess, issued 08/15/1985.
Fischer teaches pesticide compositions (see entire document, including paragraph 0002). The composition may contain fluopyram (paragraph 0196; cf. claims 1, 3, and 22). The composition may contain Bacillus subtilis and/or Bacillus thuringiensis (paragraph 0198; cf. claims 10-11 and 17). Pesticide compositions may be prepared as suspension concentrates (paragraph 0226) with the homogenized particles of the pesticides dispersed in the aqueous carrier at a concentration of 5-50% by weight (paragraph 0229; cf. claim 1). Suspension concentrates may contain thickeners or gelling agents that include synthetic polysaccharide derivatives of cellulose (paragraph 0248).
However, Fischer does not teach that the synthetic polysaccharide derivative of cellulose used as a thickener is hydroxypropyl methylcellulose. Fischer also does not teach the particular amounts of the fluopyram and hydroxypropyl methylcellulose recited in instant claims 1 and 12-16 or the particle sizes recited in instant claims 24-25.
Hess teaches that hydroxypropyl methylcellulose ethers have been known for a long time and have found wide acceptance for many applications, including as suspension stabilizers and as thickeners in aqueous systems (see entire document, including column 1, lines 10-20; cf. claim 1).
While Fischer does not teach that the synthetic polysaccharide derivative of cellulose used as a thickener in the aqueous pesticide suspension comprising fluopyram and Bacillus subtilis and/or thuringiensis rendered obvious by their teachings is hydroxypropyl methylcellulose, it would have been obvious to one of ordinary skill in the art to use hydroxypropyl methylcellulose as the synthetic polysaccharide cellulose derivative thickener in the suspension composition of Fischer because Hess teaches that hydroxypropyl methylcelluloses have been known for a long time and have been used as suspension stabilizers and as thickeners in aqueous systems. One of ordinary skill in the art would have a reasonable expectation that using the hydroxypropyl methylcellulose of Hess in the aqueous suspension of Fischer would successfully result in the production of an aqueous pesticide suspension with the desired thickness. The Examiner notes that the production of such a composition would intrinsically result in at least a portion of the fluopyram being dissolved in the aqueous suspension as Fischer and Hess do not require encapsulation of the fluopyram.
While Fischer and Hess do not teach that the composition contains the specific amounts and ratios of fluopyram and hydroxypropyl methylcellulose recited in instant claims 1, 12-14, and 16 or the particular particle sizes of claims 24-25, the recited amounts, ratios, and sizes 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 particle is an art-recognized, result-effective variable known to impact the size and properties of the particle, which would have been optimized in the art to provide the desired properties and size of the particle. 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 particle sizes of fluopyram in the aqueous pesticide suspension because the size of a particle is an art-recognized, result-effective variable known to impact the ability of the particle to suspend in an aqueous solution, which would have been optimized in the art to provide a suspension with the desired thickness and properties.
Therefore, claims 1, 3, 9-14, 1-17, 22, and 24-25 are rendered obvious by Fischer in view of Hess 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.
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 08/21/2026
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