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 .
Status of Claims
Applicants amendment filed 9/26/2025 has been entered. Claim 1, 26and 34 were amended. Claims 25 was cancelled. Claims 1, 16, 20-24, 26 and 28-37 are pending.
Withdrawn rejections
Applicant's amendments and arguments filed 9/26/2025 are acknowledged and have been fully considered. Any rejection and/or objection not specifically addressed below is herein withdrawn.
Applicant’s amendment has necessitated a new rejection.
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.
Claims 1, 16, 20, 21, 24, 26 and 28-37 are rejected under 35 U.S.C. 103 as being unpatentable over Xia et al. (CN 101273729; published June 15, 2011) in view of Matsumura et al. (2007/0141032; published June 21, 2007).
Applicant’s Invention
Applicant claims a liquid preparation essentially free of water and substantially free of mineral oil comprising a) at least 40 wt.% of at least one ethoxylated and/or propoxylate organic polymer of formula X-O-[CH2CH(CH3)-O]m-[CH2-CH2-O-]n-Y wherein at least one of X or Y is selected from C2-24 linear or branched carbonyl, m is 0-10, n is 0-40 and m+n is not zero and b) fungal spores. (claim 1)
Applicant claims a method for controlling phytopathogenic fungi, insects and/or nematodes in or on a plant comprising applying an effective amount of the liquid preparation to said plant or to a locus where plants grow. (claim 26)
Applicant claims a method of producing a liquid composition comprising mixing the liquid preparation according to claim 1 with water. (claim 37)
With respect to claims 16, 20, 21, 24, 26, 28-34, 36 and 37 of the instant application, Xia et al. discloses a fungal oil suspending agent composed of 1-50% spore powder, 1-25% surfactant and 25-98% by weight suspending oil (abstract). The surfactant is preferably a non-ionic surfactant preferably selected from fatty alcohol polyoxyethylene ether, alkyl phenol polyoxyethylene ether, Span, Tween or a mixture of surfactants [0011-12; limitation of 21 and 24]. The suspending oil is a plant oil, preferably selected from soybean oil, colza oil, cottonseed oil, palm oil, sesame oil, corn oil or a mixture of these oils [0012]. The formulation can be diluted with water (is water miscible) and sprayed by ulv techniques [0014; limitation of claim 16]. The fungi is selected from Metarhizium anisopliae and Beauveria bassiana [0012, 29; limitation of claim 20]. The formulations are used to control necrotic foliar disease by spraying it on plants [0050-52].
Xia et al. do not specify at least 40 wt% of the organic polymer of formula X-O-[CH2CH(CH3)-O]m-[CH2-CH2-O-]n-Y wherein at least one of X or Y is selected from C2-24 linear or branched carbonyl, m is 0-10, n is 0-40 and m+n is not zero. It is for this reason that Matsumura is joined.
Matsumura teach insecticidal oil-based formulations comprising a nonionic surfactant suitable for emulsifying the oil and filamentous fungus and a method for controlling insect pests comprising applying said formulation to a plant vulnerable to the insect pest (abstract). Matsumura teach polyoxyethlene fatty acid ester Pegnol 24-O and polyoxyethlene alkyl ether compounds include Pegnol O-4, Pegnol ST-3 [0079]. Pegnol O-4 reads on the claimed polymer wherein X is H, Y is C18 alkyl, m is 0 and n is 4 (calculate molecular weight greater than 420 g/mol) (limitation of claims 1, 28, 30-34 and 36). Example 9 shows a formulation comprising 74% paraffin hydrocarbon, 1,3% aromatic hydrocarbon, 10% Pegnol O-4 and 5% fungus powder comprising Paecilomyces tenuipes [0131]. Matsumura teach the fungus is essentially water free where it is cultured, dried and ground into a solid culture medium [0068]. Matsumura teaches the filamentous fungus is present in an amount of 0.05-20% by weight of the formulation [0069].
With respect to claim 35, the amount of the nonionic surfactant is generally 0.1-50% by weight of the formulation which encompasses at least 40 wt. % and renders at least 50% surfactant obvious [0082].
With respect to claim 37, Matsumura teaches diluting the oil-based formulations to apply the formulation in an application to foliage, preferably with water which implies that the formulation is water-miscible [0101].
With respect to claim 20, the fungus Beauveria bassiana is used in the formulations as the filamentous fungus in a form isolated from nature or from culture collections [0024-34, 0126]. The fungus powder comprises 1X1011 CFU/g of the fungal body [0125].
With respect to claims 21 and 25, Matsumura teaches the formulation may further comprise other submaterials commonly used in pesticides such as a carrier, pH adjuster, spreader, wetting agent, antioxidant agent and drift preventing agents [0087].
With respect to claims 28 and 29, Matsumura teaches all polyoxyethylene alkyl ethers and the like which render the polymer compounds with different X and Y values prima facie obvious.
Both Xia and Matsumura teach oil-based fungal formulations It would have been prima facie obvious to one of ordinary skill to combine the teachings of Xia et al. and Matsumura to include the non-ionic surfactant Pegnol O-4 to and amount of at least 40 wt. % with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to combine the teachings of Xia and Matsumura before the time of filing to include at least 40 wt.% Pegnol O-4 and similar polyoxyethylene alkyl ethers because Matsumura teaches that the nonionic surfactant is used to form fungal suspensions.
Claims 22 and 23 are rejected under 103 as being unpatentable over Xia et al. (CN 101273729; published June 15, 2011) in view of Matsumura et al. (2007/0141032; published June 21, 2007), as applied to claims 1, 16, 20, 21, 24, 26 and 28-37 above, in further view of Eiben et al. (WO 2016/050726; published April 7, 2016).
Applicant’s Invention
Applicant claims a liquid preparation essentially free of water and substantially free of mineral oil comprising a) at least 40 wt.% of at least one ethoxylated and/or propoxylate organic polymer of formula X-O-[CH2CH(CH3)-O]m-[CH2-CH2-O-]n-Y wherein at least one of X or Y is selected from C2-24 linear or branched carbonyl, m is 0-10, n is 0-40 and m+n is not zero and b) fungal spores. (claim 1)
The teachings of Xia and Matsumura are addressed in the above 103 rejection. Xia and Matsumura do not teach adding rheology modifiers, specifically fumed silica. It is for this reason that Eiben et al. is joined.
Eiben et al. teach liquid compositions comprising spores of a spore forming fungus, a polyether-modified trisiloxane and fumed silica or precipitated silica, wherein the composition is essentially free of water and the composition is useful in plant protection (abstract). The fumed silica or precipitate silica is added to the formulation to prevent sedimentation of the spores without influencing their viability to provide long term stability (page 5, lines 3-7). Fumed silica also has a thickening effect (page 5, line 24). The fungal microorganism exhibits activity against insects, nematodes and phytopathogenic fungi (page 8, lines 15-19). Those having insecticidal activity include Beauveria bassiana and Paecilomyces fumosorosea (now known as Isaria fumosorosea (page 13, line 6 through page 14, line 17).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
Xia, Matsumura and Eiben are all drawn to liquid formulations free of water comprising fungi. Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Xia, Matsumura and Eiben et al. to include fumed silica or precipitated silica as a stabilizer in the formulation with a reasonable expectation of success. One of ordinary skill would have been motivated to combine the teachings of Xia, Matsumura and Eiben et al. before the time of filing to include fumed or precipitated silica as a stabilizer because Matsumura teach formulations comprise further stabilizers and Eiben et al. teach that fumed silica and precipitated silica prevents sedimentation of spores to provide long term stability and a thickening effect.
Response to Arguments
Applicant's arguments filed 9/26/2025 have been fully considered but they are not persuasive in view of the new rejection necessitated by amendment. Applicant argues that the present invention is drawn to a preparation substantially free of mineral oil. However, Xia et al. teach fungal formulations comprising nonionic surfactants and plant oils were known before the time of filing (abstract). Therefore, one of ordinary skill would have been motivated to combine polymers of the claimed formula with the fungal oils comprising plant oils instead of mineral oil with a reasonable expectation of similar effects.
Conclusion
No claims allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 DANIELLE D JOHNSON whose telephone number is (571)270-3285. The examiner can normally be reached Monday-Friday 9:00 am-5:30 pm.
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, Bethany Barham can be reached on 571-272-6175. 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.
/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
DANIELLE D. JOHNSON
Examiner
Art Unit 1617