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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 4/9/2026 has been entered.
Election/Restrictions
Claims 22-26 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected groups, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 5/20/2024.
Response to Arguments
All of Applicant’s arguments filed 4/9/2026 have been fully considered.
Applicant amendments to the claims were sufficient to overcome the 103 rejections presented in the office action mailed 11/12/2025 over Baba.
103 Rejections over Gerstl
In summary, Applicant argues that substituting glyphosate for atrazine (or alachlor) in Gerstl is impossible, because the montmorillonite clay deactivates the glyphosate. although glyphosate is often mixed with various adjuvants for agricultural application, formulating it directly with montmorillonite clay is fundamentally incompatible and would render the herbicide inactive. This strong adsorption is the main reason the two substances are incompatible in a formulation meant for spraying. If glyphosate is mixed with montmorillonite in a tank or before application, a significant portion of the herbicide molecules will become bound to the clay particles, forming a stable complex . This process, often irreversible under normal conditions, removes the glyphosate from the solution, meaning it is no longer available to be absorbed by plant leaves. The intended herbicidal activity is therefore lost because the active ingredient has been "inactivated" or sequestered by the clay.
This not persuasive as the claims are directed to making an encapsulated pesticide, not using the encapsulated pesticides as a spray solution. The prior art makes obvious encapsulating a peptide using the claimed method, as such the limitations of the claim have been met.
Maintained/Modified 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 (i.e., changing from AIA to pre-AIA ) 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.
Claim(s) 1, 4-10, 16, 19 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gerstl (1998), Koivunen (US 2013/0190175), Wright (US 5,750,468), Wyss (US 2003/0068315) and Nussinovitch (US 2018/0001291).
Gerstl discusses the controlled release of pesticides into water. Controlled release formulations of pesticides, specifically alachlor and atrazine, were prepared from alginate and pectin (Abs).
Gerstl teaches polymer beads to be made by preparing a mixture of polymer, clay, active in water to form a suspension and then adding this into a CaCl2 solution (reading on aqueous solution, calcium ions and no organic solvents).
Gerstl teaches using fruit pectin (pg. 3804, col. 1).
Regarding claim 4-5: Gerstl teaches the pectin to have a degree of esterification ranging from 18-30% (pg. 3804, col. 1).
Gerstl teaches that the rate of release of alachlor is greatly influences by the nature of the polymer composition. Pectin beads release 70% of their content after 40 h, whereas alginate-based beads and alginate/pectin beads release, after the same period of time, 40 and 88%, respectively. The addition of alginate to pectin increased the bead’s mechanical resistance to shrinkage during drying and helped the beads formed to retain their spherical shape, yet the rate of release from the combined polymer beads was greater than from either of the individual polymer ones (pg. 3802, col. 2).
Regarding claims 9-10: It would have been prima faice obvious to a skilled artisan to optimize the ratio of alginate and pectin to achieve desired effects of release and mechanical resistance.
Gerstl teaches the mixtures of the polymer and active comprising water.
However, Gerstl does not teach the addition of a surfactant and the use of glyphosate as the pesticide.
Koivunen teaches both atrazine and glyphosate to be chemical herbicides [0024], showing them to be art recognized equivalent herbicides.
Wright teaches herbicidal compositions comprising glyphosate or a salt thereof and an effective herbicidal activity enhancing amount of a composition comprising a surfactant (Wright -claim 4). Wright teaches that under most application conditions, the herbicidal efficacy of glyphosate can be significantly enhanced by including one or more surfactants in the composition to be applied. It is believed that such surfactants act partly by facilitating the penetration of glyphosate, a relatively hydrophilic compound, through the rather hydrophobic cuticle which normally covers the external above-ground surfaces of higher plants (col. 1, lines 35-45).
Regarding claim 6: A preferred surfactants is a tertiary etheramines having R1-cocoalkyl (col. 7, lines 50-55), which reads on cocoamine surfactant as claimed.
Regarding claim 16: Wright teaches preferred salts forms of glyphosate to be the isopropylamine, while an especially preferred salt form is ammonium salt.
Example 1-4 discloses a composition comprising water, a glyphosate salt and a surfactant.
Regarding claims 7-8, 19 and 21: Wright teaches that in concentrate liquid and dry composition the surfactant and glyophosate are preferably include in a weight ratio of about 1:20 to about 1:1 (col. 8, lines 5-11). Wright teaches that the glyphosate levels can be increased to high levels without increasing the surfactant concentration and still give excellent herbicidal performance (Col. 5, lines 30-40). Concentrated compositions having 31% glyphosate/5.5% surfactant, 25% surfactant/61.8% glyphosate (working examples), thus it would have been prima facie obvious for a skilled artisan to optimize the amounts of surfactant and glyphosate used based on a concentrated or diluted formulation in order to achieve a desired herbicidal effect. MPEP 2144.05 II: "Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here 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.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.)"
It would have been prima facie obvious to a person of skill in the art before the effective filing date of the claimed invention to modify the teachings of Gerstl with those of Koivunen and Wright. One of skill in the art would have been motivated to substitute the atrazine of Gerstl with glyphosate or a salt thereof (such as ammonium salt) as these are taught by the prior art to be equivalent herbicides and its prima facie obvious to substitute one art recognized equivalent for another as they are both taught by the prior art to be used for the same purpose. One of skill in the art would have also been motivated to add a surfactant, such as those taught by Wright as Wright teaches that herbicidal efficacy of glyphosate can be significantly enhanced by including one or more surfactants in the composition to be applied. One of skill in the art would have a reasonable expectation of success as both Wright and Gerstl teach compositions comprising pesticides.
However, the above reference do not teach the use of alginate having a viscosity from 4-100 centipoise as recited by instant claim 1(a).
Gerstl teaches the use of alginate from Fluka No. 71238, as evidenced by Wyss, this alginate is considered low viscosity [0059]
Nussinovitch discusses liquid core capsules containing alginate (Abs). The capsules can be used for pesticide, drug or cell encapsulation [0164]. Nussinovitch teaches that alginate can be low or high viscosity and low viscosity typically refers to alginate solutions having a viscosity ranging from 4-300 cP, where the concentration of the alginate is about 1-2% (w/w) [0072].
In view of these teachings a skilled artisan would recognize that the low viscosity alginates of Nussinovitch having a viscosity ranging from 4-300 cP could be used with a reasonable expectation of success as both Nussinovitch and Gerstl shows that low viscosity alginates are suitable for encapsulating peptides.
In the alternative, it would have obvious to one of skill in the art that low viscosity described in Gerstl and Wyss would encompass the range taught by Nussinovitch as Nussinovitch teaches an art recognized range of alginate that is considered low viscosity.
As discussed above, the prior art makes obvious a method of making polymer beads wherein an aqueous solution of polymer, active agent and calcium chloride is prepared and the art further makes obvious adding a surfactant. However, the prior art does not teach the individual steps of first formulating a solution of biopolymers, then a solution of pesticides, mixing these two and then adding a surfactant as claimed and calcium ions, however, it is noted that the selection of any order of mixing steps is prima facie obvious in the absence of unexpected results.
MPEP 2144.049 IV (C) Changes in Sequence of Adding Ingredients
Ex parte Rubin , 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.).
Claim(s) 1, 3, 4-10, 16, 19 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gerstl (1998), Koivunen (US 2013/0190175), Wright (US 5,750,468), Wyss (US 2003/0068315) and Nussinovitch (US 2018/0001291), as applied to claims 1, 4-10, 16, 19 and 21 above, and further in view of Enan (US 2013/0164361).
As discussed above, the prior art makes obvious the limitations of 1, 4-10, 16, 19 and 21, but they do not teach the pectin to be citrus pectin.
Enan discloses enhanced formulation for pest control (Abs). Enan teaches that a suitable pectin for use include citrus pectin (table 3).
It would have been prima facie obvious for a skilled artisan before the effective filing date of the claimed invention to modify the teachings above with those of Enan and select citrus pectin for use as its prima facie obvious to select a known material for use in a pesticide, based on its recognized suitability for its intended purpose.
New Claim Rejections - 35 USC § 103
Claim(s) 1, 4-12, 16-17, 19 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Galea (WO 2012/048377), Baba (US 2007/0196411), Gerstl (1998), Wyss (US 2003/0068315), Nussinovitch (US 2018/0001291) and Wright (US 5,750,468). Galea is newly cited.
Galea teaches biocontrol methods for controlling weed growth, particularly fungal biocontrol methods for control and suppression of weed growth (Abs). Galea teaches that the biocontrol composition comprises an herbicide, specifically glyphosate and its isopropylamine salt form (Pg. 8). The composition is also encapsulated in a soluble container which can be an alginate capsule, a gelatine capsule and a water-soluble polysaccharide capsule, etc. (Galea – claims 22-24).
However, Galea does not teach a method of encapsulation as recited by the instant claims, nor the addition of a surfactant and the use of a low viscosity alginate.
Baba discloses a microcapsule comprising a core material containing pyrethrin (i.e. a pesticide) and a capsule shell wall which surrounds said core material, said shell wall material comprises gelatin and at least one polysaccharide selected from the group consisting of gum arabic and pectin is effective for controlling insects (Abs).
Baba teaches that the pectin (i.e. water soluble polysaccharide) is dissolved in alkali water at 30-70°C (reading on aqueous solution), then, pyrethrin or its solution is added under pH 5 or more and kept at 30-70ۣ°C (reading on instant claim 17) [0010], this reads on step (a) and (b) (i.e. preparing a an aqueous solution of a biopolymer and then adding in a solution of pesticide).
Regarding claims 11-12: Baba teaches that when the pyrethrin solution was added the mixture was stirred for 15min at 500rpm, then acetic acid was added and mixed for 30min at 700 rpm (Example 1).
Baba teaches that powdery substances may be added for keeping stability of the pyrethrin solution, these include calcium carbonate and calcium sulfate (reading on calcium ions), as such it would have been prima facie obvious to add calcium to the pyrethrin solution above.
However, Baba does not teach the use of alginate along with the pectin.
Gerstl discusses the controlled release of pesticides into water. Controlled release formulations of pesticides, specifically alachlor and atrazine, were prepared from alginate and pectin (Abs).
Gerstl teaches using fruit pectin (pg. 3804, col. 1).
Regarding claim 4-5: Gerstl teaches the pectin to have a degree of esterification ranging from 18-30% (pg. 3804, col. 1).
Gerstl teaches that the rate of release of alachlor is greatly influences by the nature of the polymer composition. Pectin beads release 70% of their content after 40 h, whereas alginate-based beads and alginate/pectin beads release, after the same period of time, 40 and 88%, respectively. The addition of alginate to pectin increased the bead’s mechanical resistance to shrinkage during drying and helped the beads formed to retain their spherical shape, yet the rate of release from the combined polymer beads was greater than from either of the individual polymer ones (pg. 3802, col. 2).
It would have been prima facie obvious for a skilled artisan before the effective filing date of the claimed invention to modify the teachings of Galea with those of Baba and Gerstle, to encapsulate the glyophosate in a pectin/gelatin capsule using the method of Baba. A skilled artisan would have been motivated to use the method of Baba as Baba teaches this method to be suitable for encapsulating pesticides into capsules containing water-soluble polysaccharides as desired by Galea. Baba teaches that the pesticide can be added in the form of a solution, this it would be obvious to use a glyphosate salt as a solution in just water, not organic solvents as taught by Baba, as the isopropylamine salt of glyphosate compound is water-soluble as taught by Wright (col. 1, lines 25-30).
Regarding the use of alginate and pectin:
Regarding claims 1 and 9-10: One of skill in the art would have been further motivated to add alginate to the pectin solution as Gerstl teaches that adding alginate to pectin increased the bead’s mechanical resistance to shrinkage during drying and helped the beads formed to retain their spherical shape and also effects the release rate, thus it would have been obvious to a skilled artisan to optimize the ratio of alginate and pectin to achieve desired effects of release and mechanical resistance. One of skill in the art would have also been motivated to use the pectin of Gerstl as its obvious to select a known material for incorporation into a composition based on its recognized suitability for its intended purpose (i.e. encapsulating pesticides). One of skill in the art would have a reasonable expectation of success as Baba, Gerstl and Galea teach encapsulating pesticides in water soluble polysaccharides.
Regarding the use of low viscosity alginate:
Gerstl teaches the use of alginate from Fluka No. 71238, as evidenced by Wyss, this alginate is considered low viscosity [0059].
Nussinovitch discusses liquid core capsule containing alginate (Abs). The capsules can be used for pesticide, drug or cell encapsulation [0164]. Nussinovitch teaches that alginate can be low or high viscosity and low viscosity typically refers to alginate solutions having a viscosity ranging from 4-300 cP, where the concentration of the alginate is about 1-2% (w/w) [0072].
In view of these teaching a skilled artisan would recognize that the low viscosity alginates of Nussinovitch having a viscosity ranging from 4-300 cP could be used with a reasonable expectation of success as both Nussinovitch and Gerstl shows that low viscosity alginates are suitable for encapsulating peptides.
In the alternative, it would have obvious to one of skill in the art that low viscosity described in Gerstl and Wyss would encompass the range taught by Nussinovitch as Nussinovitch teaches an art recognized range of alginate that is considered low viscosity.
Regarding the addition of a surfactant, step (c):
Wright teaches herbicidal compositions comprising glyphosate or a salt thereof and an effective herbicidal activity enhancing amount of a composition comprising a surfactant (Wright -claim 4). Wright teaches that under most application conditions, the herbicidal efficacy of glyphosate can be significantly enhanced by including one or more surfactants in the composition to be applied. It is believed that such surfactants act partly by facilitating the penetration of glyphosate, a relatively hydrophilic compound, through the rather hydrophobic cuticle which normally covers the external above-ground surfaces of higher plants (col. 1, lines 35-45).
One of skill in the art would have also been motivated to add a surfactant, such as those taught by Wright as Wright teaches that herbicidal efficacy of glyphosate can be significantly enhanced by including one or more surfactants in the composition to be applied. One of skill in the art would have a reasonable expectation of success as both Wright and Gerstl teach compositions comprising pesticides. While the prior art doesn’t make obvious in which step the surfactant is added it is noted that any order of performing method steps is prima facie obvious absent evidence of criticality.
Regarding claim 6: Wright teaches a preferred surfactants is a tertiary etheramines having R1-cocoalkyl (col. 7, lines 50-55), which reads on cocoamine surfactant as claimed.
Regarding claim 16: Wright teaches preferred salts forms of glyphosate to be the isopropylamine, while an especially preferred salt form is ammonium salt and Galea also teaches this salt form to be used.
Example 1-4 discloses a composition comprising water, a glyphosate salt and a surfactant.
Regarding claims 7-8, 19 and 21: Wright teaches that in concentrate liquid and dry composition the surfactant and glyophosate are preferably include in a weight ratio of about 1:20 to about 1:1 (col. 8, lines 5-11). Wright teaches that the glyphosate levels can be increased to high levels without increasing the surfactant concentration and still give excellent herbicidal performance (Col. 5, lines 30-40). Concentrated compositions having 31% glyphosate/5.5% surfactant, 25% surfactant/61.8% glyphosate (working examples), thus it would have been prima facie obvious for a skilled artisan to optimize the amounts of surfactant and glyphosate used based on a concentrated or diluted formulation in order to achieve a desired herbicidal effect. MPEP 2144.05 II: "Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here 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.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.)"
Claim(s) 1, 3, 4-12, 16-17, 19 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Galea (WO 2012/048377), Baba (US 2007/0196411), Gerstl (1998), Wyss (US 2003/0068315), Nussinovitch (US 2018/0001291) and Wright (US 5,750,468), as applied to claims 1, 4-12, 16-17, 19 and 21 above, and further in view of Enan (US 2013/0164361).
As discussed above, the prior art makes obvious the limitations of 1, 4-12, 16-17, 19 and 21, but they do not teach the pectin to be citrus pectin.
Enan discloses enhanced formulation for pest control (Abs). Enan teaches that a suitable pectin for use include citrus pectin (table 3).
It would have been prima facie obvious for a skilled artisan before the effective filing date of the claimed invention to modify the teachings above with those of Enan and select citrus pectin for use as its prima facie obvious to select a known material for use in a pesticide, based on its recognized suitability for its intended purpose.
Claim(s) 1, 4-12, 13, 16-17, 19 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Galea (WO 2012/048377), Baba (US 2007/0196411), Gerstl (1998), Wyss (US 2003/0068315), Nussinovitch (US 2018/0001291) and Wright (US 5,750,468), as applied to claims 1, 4-12, 16-17, 19 and 21 above, and further in view of CN103340197.
As discussed above, the prior art makes obvious the limitations of 1, 4-12, 16-17, 19 and 21, however, they do not teach the product to be stirred under a blanket of inert gas as recited by instant claim 13.
CN’197 teaches slow release/controlled release microcapsule pesticides and teaches that stirring and reactions occur under the protection of nitrogen.
It would have been prima facie obvious for a skilled artisan before the effective filing date of the claimed invention to modify the teachings of Baba with those CN’197 and ensure the product was stirred under nitrogen as this is taught in the art to be a protective agent used in methods of encapsulating pesticides and its prima facie to pursue the known options within the technical grasp of a skilled artisan.
Claim(s) 1, 4-12, 14, 16-17, 19 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Galea (WO 2012/048377), Baba (US 2007/0196411), Gerstl (1998), Wyss (US 2003/0068315), Nussinovitch (US 2018/0001291) and Wright (US 5,750,468), as applied to claims 1, 4-12, 16-17, 19 and 21 above, and further in view of Casana Giner (US 2009/0099024).
As discussed above, the prior art makes obvious the limitations of 1, 4-12, 16-17, 19 and 21, however, they do not teach the product to be stirred with a product as listed in claim 14.
Casana Giner teaches making controlled release microcapsules comprising active ingredients such as glyphosate (a pesticide) and surfactants [0072]. Casana Giner teaches that during the process the main agitator used is an anchor [0068].
It would have been prima facie obvious for a skilled artisan before the effective filing date of the claimed invention to modify the teachings of Baba with those Casana Giner and ensure the product was stirred using an agitator such as an anchor as this is taught in the art to be known agitator used in methods of encapsulating actives such as pesticides and its prima facie to pursue the known options within the technical grasp of a skilled artisan.
Claim(s) 1, 4-12, 16-17, 19, 20 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Galea (WO 2012/048377), Baba (US 2007/0196411), Gerstl (1998), Wyss (US 2003/0068315), Nussinovitch (US 2018/0001291) and Wright (US 5,750,468), as applied to claims 1, 4-12, 16-17, 19 and 21 above, and further in view of JP2014505110.
As discussed above, the prior art makes obvious the limitations of 1, 4-12, 16-17, 19 and 21, however, they do not teach the process to be a continuous or a batch process as recited by instant claim 20.
JP’110 teaches insecticidal formulations including a plurality of microcapsules having a polymer shell (Abs). JP’110 teaches that these types of formulations can be prepared with batch process or continuous process or both. Such a process can be designed by those skilled in the art and optimized and operated for the desired output parameters.
It would have been prima facie obvious for a skilled artisan before the effective filing date of the claimed invention to modify the teachings of Baba with those JP’110 and make the formulation using a batch process or continuous process or both as this is taught in the art to be known process when formulating insecticidal formulations and its prima facie to pursue the known options within the technical grasp of a skilled artisan to achieve the predictable result of formulating a pesticide/insecticide formulations.
Conclusion
No claims are allowable.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer A Berrios whose telephone number is (571)270-7679. The examiner can normally be reached Monday-Thursday from 9am-4pm and Friday 9am-3:30pm.
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/JENNIFER A BERRIOS/Primary Examiner, Art Unit 1613
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