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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 11/05/2025 has been entered.
Response to Arguments
Applicant's arguments filed 11/05/2025 have been fully considered but they are not persuasive.
The combination of penthiopyrad with 3-hydroxyhexanoic acid at the narrowed ratio of between about 1:100 and 10:1 does appear to be correlate with the results demonstrated. Specifically, the FIC of 0.38 suggests strong synergy.
However, the claims as a whole remain not commensurate in scope with the unexpected results (See MPEP 716.02(d)). The art (see for example Emery Pharma, 09/24/02024 NPL Cite No 3) indicates FIC values of <0.5 as synergistic. Note the reference is not used as prior art but merely as an evidentiary reference to establish a PHOSITA’s interpretation of the evidence of record. Various species encompassed by the claims beyond the elected species have FIC values of ≥0.50 which cannot be considered unexpected results. For example, the combination of penthiopyrad with (2E,4E)-2-4-Hexadienoic acid and with 2-hydroxybutyric acid each have an FIC index of 0.75. The initial obviousness rejection applies in equal or greater force to said combinations; said fatty acids are at once envisaged by the genus suggested by Savage et al. Said results denote weak synergy which cannot be considered unexpected given the teachings of Savage et al. that fatty acids can complement or improve the activity of other fungicidal components. The breadth of data presented by applicant suggests nearly all combinations show at least weak synergy, and applicant has not shown sufficient reason why weakly synergistic combinations can be considered unexpected. Examiner further noted that the transition phrase “comprising” permits additional fungicides to be present in the composition in order to attain the desired fungicidal effect. Only combinations with an FIC index <0.50 can be considered to show unexpected results based upon the preponderance of the evidence of record. The rejection of claims 1, 4, 8, 12,13, 21, 25-28 and 34-36 under 35 U.S.C. 103 is maintained. The double patenting rejections remain held in abeyance.
Conclusion
Claims 1, 4, 8, 12,13, 21, 25-28 and 34-36 are rejected.
Claims 2, 5, 14, 18-20 and 23 are withdrawn.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JED A KUCHARCZK whose telephone number is (571)270-5206. The examiner can normally be reached Mon-Fri 7:30 to 5.
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/JED A KUCHARCZK/Examiner, Art Unit 1623
/ADAM C MILLIGAN/Supervisory Patent Examiner, Art Unit 1623
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