*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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 May 27, 2026 has been entered.
Priority
This application claims benefit in provisional application 62/956,706 filed on 01/03/2020.
Claim Status
Claims 6-22 are pending. Claims 1-5 were canceled. Claims 6, 7, 21, and 22 are
examined. Claims 8-20 remain withdrawn. No claims were amended or newly added.
Maintained 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 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.
Claims 6, 7, 21, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Jabs
(US 2017/0188584 Al Published July 6, 2017).
The claims encompass pesticidal mixtures.
The teachings of Jabs are related to pesticidal mixtures comprising a Bacillus strain and a
pesticide (Title and Abstract). Particular preference is given to mixtures comprising as
component 1) B. amyloliquefaciens AP-188 and as component 2) at least one pesticide II
selected from pyraclostrobin, azoxystrobin, trifloxystobin; fluxapyroxad, penflufen, sedaxane,
fluopyram; ipconazole; oxathiapiprolin, valifenalate; fipronil; imidacloprid; chlorantraniliprole;
and cyantraniliprole (page 0185). Specific mixtures encompass an agrochemical composition
comprising a fungicidally or insecticidally effective amount of at least one microorganism I and
at least one pesticide II. Such an amount can vary in a broad range and is dependent on various
factors (paragraph 0224). In the mixtures, the weight ratio of the component 1) and the
component 2) generally depends on the properties of the active components used, usually it is in
the range of from 1:10,000 to 10,000:1, regularly in the range of from 1:100 to 10,000:1,
preferably in the range of from 1:100 to 5,000:1, more preferably in the range of from 1:1 to
1,000:1, even more preferably in the range of from 1:1 to 500:1 and in particular in the range of from 10:1 to 300:1 (paragraph 0258). According to further embodiments of the mixtures and
compositions, the weight ratio of component 1) and the component 2) usually is in the range of
from 1:1 to 1:1000, often in the range of from 1:1 to 1:100, regularly in the range of from 1:1 to 1:50, and preferably in the range of from 1:1 to 1:20 (paragraph 0261).
Regarding claims 7 and 21, it would have been prima facie obvious to a person of
ordinary skill in the art at the time of the claimed invention to have formed a pesticidal mixture
comprising an effective amount of B. amyloliquefaciens and imidocloprid wherein the weight ratio of B. amyloliquefaciens to imidocloprid ranges from 1:1 to 1:1000, with a reasonable
expectation of success because Jabs teaches a pesticidal mixture comprising B.
amyloliquefaciens as component I and at least one pesticide selected from imidocloprid as
component II, where the weight ratio of component I to component II ranges from 1:1 to 1:1000
and where the microorganism and the pesticide are present in a fungicidally or insecticidally
effective amount.
The claimed ranges of ratios of B. amyloliquefaciens to imidocloprid are obvious because
the claimed ranges of "from about 1:177 to about 1:200" and "about 1:177" are encompassed by
the prior art range of from 1:1 to 1: 1000.
Regarding claims 6 and 22, it would have been further obvious to the skilled artisan to
have added at least one suitable auxiliary to pesticidal mixture, with a reasonable expectation of
success because Jabs teaches that the composition further comprises at least one auxiliary
(paragraph 0138). It would have been obvious to have selected a stabilizer as a suitable auxiliary,
with a reasonable expectation of success because Jabs teaches stabilizers as suitable auxiliaries
(paragraph 0231).
The prior art composition contains the same active agents as claimed and in a range of
weight ratios that encompasses the claimed ranges of weight ratios. It would have been
reasonable to expect the prior art composition to have the same properties as claimed
composition when placed under identical conditions including being capable of controlling
tomato spotted wilt virus, absent evidence to the contrary. A composition and its properties are
inseparable.
Combining prior art elements according to known methods to obtain predictable results
supports obviousness.
Response to Arguments
Applicant's arguments submitted in the remarks dated May 27, 2026, were fully
considered but are not persuasive for the following reasons.
The claimed ranges of weight ratios are obvious because they overlap with Jabs' range of
weight ratios. It has been held that in the case where the claimed ranges "overlap or lie inside
ranges disclosed by the prior art" a prima facie case of obviousness exists. The examiner acknowledges that the claimed ranges are narrower than Jabs' range, however that is not sufficient to render the claimed ranges nonobvious over Jabs. The specification was reviewed and there is no evidence that claimed ranges are critical or provide an unexpected property to the claimed composition.
Jabs’ teaching of multiple ranges of weight ratios does not teach away from the claimed ranges of weight ratios because it has been held that "[t]he prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed…." In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004).
Jabs teaches using the microorganism and the pesticide in a fungicidally or insecticidally
effective amount. Jabs further teaches using each component in an effective amount and further
teaches that the ratios are advantageously chosen so as to produce a synergistic effect (paragraph
0252). A person skilled in the art would have been capable of varying the ratios of the two in the
range of 1:1 to 1:1000 in order to arrive at a composition that contains the two in an effective
amount, and alternatively to obtain a composition having the two components that produce a
synergistic effect. It would have been routine to vary concentrations and ratios of the two
components in order to arrive at a composition having fungicidally or insecticidally effective
amounts of the components, and alternatively having synergistic amounts of said components.
It is further noted that the data presented on the last page of the specification does not support a finding of unexpected results. The effect of B. amyloliquefaciens alone on TSWV is unknown, thus one of ordinary skill in the art cannot determine whether or not the observed effect of the combination of B. amyloliquefaciens and imidacloprid is unexpected. See MPEP716.02 for the requirements that have to be met in order to rebut an obviousness rejection with unexpected results.
Conclusion
No claims are allowed.
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 Alma - Pipic whose telephone number is (571)270-7459. The examiner can normally be reached M-F 9:00am-5:00pm.
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/ALMA PIPIC/Primary Examiner, Art Unit 1617
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