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 .
DETAILED ACTION
Status of the Claims
Claims 2-3, 6, 13, 14 and 16 have been canceled. Claims 1, 4, 5, 7-12, 15 and 17 are pending. Claims 15 and 17 are withdrawn. Claims 1, 5, 8, 10, and 12 have been amended. Claims included in the prosecution are claims 1, 4, 5, and 7-12.
Information Disclosure Statement
The Information Disclosure Statement(s) (IDS) submitted on July 7, 2026, follows the provisions of 37 CFR 1.97. Accordingly, this IDS has been considered by the Examiner.
Withdrawn Objections/Rejections
In light of the new amendments, e.g., removal of the term “about,” the rejection of claim 1 and dependent claims thereof under 35 U.S.C. § 112 as being indefinite are withdrawn.
New Rejections
Applicants’ amendments have necessitated the following grounds of rejection:
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 1 and all dependent claims thereof are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation "active ingredient in the partly solubilized form from freezing at sub-zero degrees Celsius" in lines 5-6 (see element (d)). There is insufficient antecedent basis for this limitation in the claim.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. § 103 (a) are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 4-5 and 7-12 are rejected under 35 U.S.C. 103 as being unpatentable over Wang et al. (CN 1305711 A) herein “Wang ‘711” and Wang et al. (CN 1299593 A) herein “Wang ‘593” in view of Qin et al. (US 20120316205 A1) herein “Qin”, and Lin et al. (CN 101785455 A) herein “Lin”. Citations are from machine translated documents.
Wang ‘711 teaches avermectin (3 kg), bifenthrin (50 kg) that are dissolved in dimethylbenzene (i.e., xylene) (747 kg), wherein diesel oil (100 kg), 2201 emulsifier (45 kg), and Tween-80 (55 kg) are added and then stirred evenly to obtain a 4.5% abamectin-bifenthrin pesticide combination miscible oil (see Embodiment 5). The composition is free of water.
While Wang ‘711 teaches bifenthrin to meet the at least one pyrethroid limitation, there is no explicit teaching if the pyrethroid is “partly solubilized”, if the formulation is “stable at a temperature below zero degrees Celsius.”
Wang ‘711 does not teach neonicotinoid and colloidal silicon dioxide/fumed silica or the particle size distribution claimed.
However, Wang ‘593 similarly teaches avermectin (3 kg) and acetamiprid (50 kg) dissolved in dimethyl benzene (i.e., xylene) (747 kg) followed by the addition of diesel (100 kg), 2201 emulsifier (45 kg), and Tween-80 (55 kg) with uniformly stirring to obtain the 5.3% abamectin-acetamiprid pesticide combination miscible oil (see Embodiment 8). The composition is free of water. Here the teaching of acetamiprid reads on the neonicotinoid limitation.
It would have been prima facie obvious to a person of ordinary skill in the art, ahead of the effective filing date of the claimed invention to combine the compositions as they share the same ingredients except for one; Wang ‘711 teaches a pyrethroid, i.e., bifenthrin, and Wang ‘593 teaches a neonicotinoid, i.e., acetamiprid. As cited in MPEP 2144.06, the In re Kerkhoven case states, “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose…. [T]he idea of combining them flows logically from their having been individually taught in the prior art.” Here in Wang ‘711 and Wang ‘593 combining the two compositions since they are known for the same purpose and the only difference are the active ingredients would have expected results. Further, the solubilizing medium and aromatic solvent, i.e., xylene, are of the same the properties of “partly solubilized” and as such the formulation is “stable at a temperature below 0 °C” and the active ingredient in the partly solubilized form would be prevented from freezing at sub-zero degrees Celsius are inherent to the compositions of each of the cited references.
The Wang references do not disclose adding colloidal silicon dioxide/fumed silica to the composition.
However, Qin teaches concentrated oil dispersions of insecticides that are formulated using water-immiscible solvent and fumed silica. The water-immiscible solvent is selected from methylated seed oils, light petroleum distillates, heavy petroleum distillates, seed oil, N-N-dimethyl alkyl amide, and mineral oils (claims 3, 13); naphthalene depleted heavy aromatic solvent (claims 7, 16). Xylenes are taught in paragraph [0013].
The formulations of Qin may include an emulsifier ([0015], claims 8, 18) and a second insecticide (claims 9, 19). The formulation comprises about 10% to about 50% by weight a sulfoximine insecticide ([0012], claim 20). Some of the insecticides that can be employed beneficially in combination with the formulations include avermectin insecticides, pyridylmethylamine insecticides such as acetamiprid, and pyrethroid ester insecticides, such as bifenthrin ([0022]).
Regarding colloidal silicon dioxide/fumed silica, Qin teaches that additives may be added to increase stability and include thickening agents, emulsifiers, defoamers, wetting agents, dispersants, and in some instance other agriculturally active ingredients including, for example, other insecticides, herbicides, fungicides ([0014]). A variety of additives may be included in the formulations and are typically added in amounts from about 0.001% to about 10%, more typically between 0.1-5%, by weight ([0016]). Qin mixes hydrophobically modified fumed silica (Aerosil® R974) at 3.5 g/ 100 ml to the solvent methylated soybean oil (see Preparation of Formulation D, Tables 1-2) and then compared with aqueous suspension concentrates of sulfoxaflor (see efficacy study results, Table 3). The range taught above 0.1-5%, the taught fumed silica is known thickening agent, and its use in formulation D renders the limitation obvious. Additionally, MPEP 2144.05 states that where 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.
It would have been prima facie obvious to incorporate the fumed silica taught by Qin to the compositions of Wang ‘711 and Wang ‘593 with expected results. Qin teaches oil dispersions with aromatic hydrocarbons with the same actives taught by both Wang references. While Qin highlights sulfoxaflor, the formulations taught can be applied in conjunction with one or more other agriculturally active ingredients, such as other insecticides ([0021]). One would be motivated to apply the fumed silica taught by Qin because Qin found that excellent control (92%) was obtained with formulation D (that employs fumed silica see AEROSIL) ([0032], Table 3; see also efficacy tests Experiment numbers 6 and 7).
Wang ‘711, Wang ‘593, and Qin do not teach particle size distribution (PSD).
Lin discloses a farm chemical oil dispersion wherein the farm chemical oil suspension contains the following components by weight: 1-35% of farm chemical active ingredient, 5-30% of emulsifier, 0.05-0.5% of anti-foaming agent, and rest proportion of dispersing medium (claim 3). Said farm chemical active ingredient is one or more insecticide which may be avermectin (claims 5-6). Preparing the farm chemical oil suspension comprises the following steps: mixing and emulsifying the dispersing medium and emulsifier; adding other components in the mixture and mixing to obtain slurry-form material; and sanding the slurry-form material by sand mill to obtain oil suspension (claim 10).
Particle size distribution provided and shown all throughout Lin. The particle diameter of the oil-suspending agent has an average particle diameter of 2-5 microns; D90 is less than 12 microns ([0030], [0035]). Lin measures the PSD of samples which are stored for 7 days at 0 °C and then 14 days at 54 °C: having particle size distributions D10 2.174 µm, D50 4.115 µm, D90 6.502 µm (paragraph [0042]), D10 2.074 µm, D50 4.315 µm, D90 6.736 µm (paragraph [0045]).
It would have been prima facie obvious to a person of ordinary skill in the art, ahead of the effective filing date of the claimed invention to apply the particle size distribution taught by Lin to the compositions of the Wang references in view of Qin with success. One skilled in the art would be motivated to do so because the farm chemical oil suspension of Lin is characterized with small average particle size with high dispersing stability and excellent expanding performance and penetrating performance on leaf of plant (abstract, [0005]) and application thereof as a finished product is almost not affected by climatic conditions to obtain a faster, more reliable and more effective result ([0038]). Lin teaches that the high dispersion stability and two-year storage stability is due to the particle size distribution to exhibit improved expanding performance and penetrating performance, a more excellent control effect; the preparation process is simple, the cost is low, and it is convenient for industrial production (see paragraph [0011]). This complements the Wang references in which reduction of cost is an objective (see both Wang ‘593 and Wang ‘711 on page 2, paragraph 2). The particle size distribution taught by Lin would improve upon the compositions of Wang ‘711 and Wang ‘593 in view of Qin absent evidence to the contrary.
Regarding claim 4 (i.e., acetamiprid) and claim 5 (i.e., 0.1-90%), Wang ‘593 teaches acetamiprid at 5% (Embodiment 8).
Regarding claim 7 (i.e., bifenthrin) and claim 8 (i.e., 0.1-90%), Wang ‘711 teaches bifenthrin at 5% (Embodiment 5).
Regarding claims 9 (i.e., diesel) and claim 10 (5-90%), both Wang ‘711 and Wang ‘593 use diesel at 10% (see Embodiments 5 and 8 respectively).
Regarding claim 11 (i.e., aromatic hydrocarbon), and claim 12 (i.e., 1-60%), while the Wang references employ percentage xylene that is more than the claimed range, Qin emphasizes the use of a water-immiscible solvent, i.e., aromatic hydrocarbons, naphthalene depleted heavy aromatic solvent (claim 7). Qin shows the balance of formulations completed by adding solvent that includes Aromatic 200ND (see Tables 1-2) and here the prior art provides a basis by which the skilled artisan would start from in order to adjust amounts and readily obtain an aromatic hydrocarbon amount that would be within the claimed range.
For the foregoing reasons the instant claims are rendered obvious by the teachings of the prior art.
Response to Arguments
Applicants’ arguments with respect to limitations have been considered but several are moot because the new ground of rejection does not rely on a reference previously applied in the prior rejection of record for a teaching or matter that had been challenged in the argument.
Conclusion
All claims under consideration remain rejected; no claims are allowed. Applicants’ amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicants are 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 extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no case, 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 Karen A. Ketcham whose telephone number is (571)270-5896. The examiner can normally be reached M-F, 9-5.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush can be reached at 571-272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Karen A Ketcham/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
