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 .
Response to Amendment
Applicant’s response of 09/16/2025 has been received and entered into the application file. Claims 1-3, 5-11, 13-15, 20-29 and 31-34 are pending in this application.
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.
Claims 1-3, 5, 15, 20-27, 29, and 31-34 are rejected under 35 U.S.C. 103 as being unpatentable over Vermeer (US 2007/0053944 A1), Dungworth et al. (WO 2017/203261 A1) and further evidenced by US EPA Pesticide Product label (Fluopyram, 2015).
Vermeer teaches novel suspension concentrates comprising at least one active compound, from the group of the azoles and/or the strobilurins, at least one penetration enhancer from the group of the alkanolethoxylates, at least one dispersant, water, and other additives (Abstract). Vermeer teaches that the suspension concentrate according to the invention can be prepared in an advantageous manner by initially mixing penetration enhancers, dispersants, and also water then adding at least one active compound, comminuting the resulting suspension by grinding, then adding water and additives as appropriate ([0012-0015]). The suspension concentrates have no unwanted crystal growth or agglomeration of the particles ([0018]). Vermeer discloses that grinding resulted in suspension in which 90% of the solid particles have a particle size below 5 microns ([0160]). Vermeer discloses the composition to comprise the propylene oxide/ethylene oxide block copolymers having molecular weights between 8000 and 10,000 (Claim 1). Vermeer discloses zoxamide, a benzamide fungicidal similar to fluopyram, but does not explicitly mention fluopyram. However, as further evidenced by US EPA Pesticide Product label 2015, fluopyram is a systemic seed treatment for use on cotton and soybean for the protection against damage caused by early season plant pathogenic nematodes (See attached reference, pg 2). It is well within one of ordinary skill in the art to consider substituting an active ingredient with fluopyram in a seed treatment composition.
Vermeer does not teach other surfactants such as sulfonates or acrylic copolymer.
Dungworth et al. teach emulsion polymer system suitable for use in agrochemical formulations for coating seeds (Abstract). In particular, insecticides, fungicides, or herbicides are preferred (page 20, lines 4-5). Suitable insecticides include imidacloprid, abamectin (page 24, lines 13-30). Fungicides include conazole fungicides, clotrimazole, metominostrobin, orysastrobin, picoxystrobin, pyraclostrobin, strobilurin fungicides (pages 21-22). Dungworth et al. teach the preparation method – surfactant, wetting agent, and propylene glycol were added then water, xanthan, structuring agent, and imidacloprid were combined whilst under continuous stirring. (pg 38, lines 7-11). Dungworth et al. teach that the resulting formulations display good stability and flowability (See table 3). Dungworth et al. teach that the composition can comprise copolymers of acrylic with methacrylates or styrene (pg 5, lines 25-26).
Both Vermeer et al. and Dungworth et al. teach a method of creating suspension and/or seed-coating formulations. Both teach milling the mixture until the active ingredient in the mixture is reduced to certain particle size. Furthermore, adding more surfactant and/or active ingredient during milling would be contemplated by one of ordinary skill in the art in an attempt to experiment with flowability and stability of the suspension. Therefore, it would have been obvious to one of ordinary person in the art before the effective filing date of the claimed invention to have combined an active ingredient in an agrochemical formulation with surfactant, water, under active milling to arrive at the present invention. This is combining prior art elements according to known methods to yield predictable results such as an agrochemical, seed-coating formulation with active ingredient particle size of less than certain micrometers.
Regarding claim 2, as discussed above, one of ordinary skill in the art would envisage adding more active ingredient and surfactant to the homogenous mixture and repeat the process to achieve smaller particle sizes under continued milling. And it would have been obvious to do so in this instant case.
Regarding claims 3 and 5, Dungworth et al. teach that formulations can be wet-milled after mixing to reduce the average particle size to from about 1-10 micrometer (page 27, lines 10-14).
Regarding claim 6, one of ordinary skill in the art would experiment with different active ingredients and their density. Additionally, Vermeer and Dungworth et al. both teach the use of similar or same active ingredients and such ingredients would display similar density as claimed here.
Regarding claim 15, Dungworth et al. teach such formulations to be used for seed-coating.
Regarding claim 20, milling is discussed above.
Regarding claim 21, Dungworth et al. teach surfactants (page 29, lines 14-16).
Regarding claims 22-23, Vermeer teaches polymeric and ethoxylate surfactants as discussed in claim 1.
Regarding claim 24, Vermeer teaches copolymers of propylene oxide-ethylene oxide as discussed above.
Regarding claim 25, Dungworth et al. teach (meth)acrylic acid copolymer in the emulsion (claim 4).
Regarding claims 26-27, Dungworth et al. teach that sulphonates can be used as surfactants (page 9, lines 8-15).
Regarding claim 29, agrochemical formulation produced by the milling method is discussed above.
Regarding claim 31, Dungworth et al. teach that the emulsion polymer system when applied to a seed surface provided an increase in seeds (page 31, lines 25-30).
Regarding claim 32, Dungworth et al. teach that the emulsion can be applied to vegetation or seeds (page 31, lines 13-16). Dungworth et al. teach germination results after coating wheat seeds (page 39 and Table 6).
Regarding claim 33, as discussed in claim 1 above, fluopyram is used for protection of soybean against damage caused by nematodes.
Regarding claim 34, adding more surfactants and/or other ingredients within a composition is routinely practiced by one of ordinary skill in the art. Likewise, one would consider adding more surfactants within an agrochemical composition to dissolve more active ingredients.
Claims 7-11, 13-14 and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Vermeer (US 2007/0053944 A1), Dungworth et al. (WO 2017/203261 A1), and US EPA Pesticide Product label (Fluopyram, 2015) as applied to claims 1-3, 5, 15, 20-27, 29, and 31-34 above, and further in view of JP-2012 (JP-2012520843 A, 09/10/2012).
JP-2012 teaches suspended pesticide having solubility of < 10 g/L, comprising a) agrochemical b) salt, c) protective colloid (Abstract). The pesticide is at least one active agent selected from the group consisting of fungicides, insecticides, herbicides. Suitable insecticides are carbamates, organic phosphates, pyrethroids; fungicides are triazole (pages 2-3). Agrochemicals usually have a melting point higher than 30 degrees Celsius (page 3). Pesticides are chosen with solubility in water equal to or less than 10 g/L (page 8). A method of making emulsion comprises colloid mills (page 9, 1st paragraph). Furthermore, such composition is useful in seed-coating (page 8, 1st paragraph). JP-2012 teaches that the concentration of pesticide in the mixture can vary greatly – generally 0.0001-10 wt.% (page 7, last paragraph). Furthermore, one of ordinary skill in the art would, through routine experimentation, experiment with different concentrations of active ingredient for a formulation – in this case, it can simply be accomplished by adding more active ingredient to the mill with or without surfactant. It would have been obvious to do so in this particular case.
Therefore, it would have been obvious to one of ordinary person in the art before the effective filing date of the claimed invention to have used active agents above certain melting point threshold. This is combining prior art elements according to known methods to yield predictable results such as a pesticide suspension with certain active ingredients.
Regarding claim 8, solubility of the emulsion is discussed above.
Regarding claims 9-10, colloid mills is discussed above.
Regarding claim 11, mixing temperature is about 35-80 degree Celsius (page 9 step 2).
Regarding claims 13-14, JP-2012 teaches that pesticide particles can have viscosity of above 1000 centipoise (page 3, last paragraph). Furthermore, Dungworth et al. teach viscosity of less than <20 centipoise of such formulations (See Table 3).
Regarding claim 28, JP-2012 teaches carboxylates for surfactants (page 6, 4th paragraph).
Response to Arguments
Applicant’s arguments filed 09/16/2025 have been fully considered but they are not persuasive.
On page 7 of remarks, applicant argues claim 1 has been amended to recite a first and second portion of the active ingredient and to further define additional milling steps based on particle size of the active ingredient.
One of ordinary skill in the art would know the wet milling process well – it can be used to reduce particle size of a product and to smooth out lumps that form in solid/liquid blends during processing. The repeated milling steps would be expected to increase the incorporation of the active agent into the composition. As further evidenced by Herold et al. (WO 03/026429 A1), the suspension concentrate comprising an active ingredient can be easily produced through milling (pg 3, line 10). During milling, new particle surfaces are created by mechanical breakdown of solid glyphosate particles. The surfactant adsorbs onto the particle surfaces to give rise to fluidity of the suspension (pg 7, lines 24-26). The ingredients can be combined by known methods, including mixing, milling; any of the mixing, milling steps can be done in any order (pg 13, lines 10-15). Furthermore, US EPA reference discloses that the fluopyram product contains 5 lbs fluopyram per gallon or 600 g fluopyram per liter, which reads on claim 1 - “wherein the concentration of the fluopyram in the agrochemical formulation is above 500 g/L”. One of ordinary skill in the art would immediately envisage that fluopyram can exist and/or be supplied at a concentration above 500 g/L. As evidenced by Herold above, an active ingredient can be milled to increase surface area and to give rise to fluidity of the suspension; one of ordinary skill in the art would repeat the step of milling as necessary.
Vermeer teaches that particle size of a suspension concentrate is routinely experimented – comminuting the resulting suspension by grinding to the respective desired particle size is routinely practiced ([0105]). One example of this particle size is below 5 microns or 5 micrometers ([0160]), which reads on claim 1.
The question remains - if a method is mixing active ingredients, surfactant, water, then milling the mixture to obtain certain particle size, why is it that one of ordinary skill in the art could not add more active ingredient and repeat the mixing and milling steps? Why is this method specifically different from an already well-known method? Is it only or more viable with this particular active ingredient (i.e., fluopyram)? Is the concentration of an active ingredient critical? Is it the milling process different? Can the flowability of the agrochemical formulation not be achieved with certain surfactants and/or specific ratios of ingredients?
The examiner cannot determine such criticality. Therefore, claims remain rejected.
Conclusion
THIS ACTION IS MADE FINAL. 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 JOHN SEUNGJAI KWON whose telephone number is (571)272-7737. The examiner can normally be reached Mon - Fri 8:00 - 5:00.
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/JOHN SEUNGJAI KWON/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615