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 .
Priority
This application is a national stage application under 35 U.S.C. § 371 of International Application No. PCT/IB2020/050112, filed 01/08/2020, which claims the priority benefit of PRO Application No. 62/789,649, 62/789,657, and 62/789,656 all filed 01/08/2019.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 06/30/2021 and 09/02/2025 were filed in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Status of the Application
Claims 1, 6, 8, 12-13, 16, and 25-33 are pending and currently under examination. Claims 2-5, 7, 9-11, 14-15 and 17-24 have been cancelled by applicant.
Applicant’s arguments, filed 03/09/2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. They constitute the complete set presently being applied to the instant application.
The obviousness rejection below is repeated from the 10/07/2025 Office Action and modified in order to address the most recent amendments.
Claim Interpretation
Regarding the claim limitations of instant claim 1 consisting of;
an anti-pathogenic compound comprising water, potassium sorbate and urea, and
a chemical activator comprising water, aqueous citric acid, and least one (Cl-C8) alkyl ester of an (Cl2- C16) alkyl acid, an anionic and nonionic surfactant, and anti-pathogenic compound are being interpreted as preliminary steps for making the recited agricultural composition having a pH of between 4 and 6.
As such, the formation of the chemical activator and the anti-pathogenic compound are not considered to be required by the instant claims. See MPEP 2113 Product-by-Process Claims and MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions.
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 of this title, 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 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, 6, 8, 12-13, 16, and 25-33 are rejected under 35 U.S.C. 103 as being unpatentable over Van Der Lelie (U.S. 2018/0092363 Al) .
The instant claims are directed to an agricultural composition comprising: an antipathogenic compound comprising potassium sorbate and urea and a chemical activator comprising an aqueous citric acid solution.
Van Der Lelie et al. teach Compositions are provided that include a new Bacillus thuringiensis strain designated RTI545 for use in benefiting plant growth and controlling plant pests. In particular, the RTI545 strain is useful for controlling plant nematode, insect and fungal pests (Abstract). Van Der Lelie teaches an agricultural composition which includes the use of isopropyl myristate and methyl laurate as liquid carriers [0125]. Van Der Lelie teaches the use of commercially available sodium dodecylbenzene sulfonate in an agricultural compositions [0135]. Van Der Lelie teaches the use of ethoxylated fatty acid alcohols as foaming agents in an agricultural composition [0130]. Van Der Lelie teaches the use of ethoxylated alcohols as surfactants in an agricultural composition, with the example of Dextrol® OC-180 [0140], The compositions may include any anionic, cationic, and nonionic surfactants at 0.1-25% [0127-0133]. Van Der Lelie teaches a suitable anionic surfactant is sodium dodecylbenzenesulfonate [0132]. Van Der Lelie teaches that urea may be used as an antifreeze agent in the agricultural compositions [0142]. Van Der Lelie also teaches embodiments in where the antifreeze agents range from 0.1 %-48% (tables XXV-XXVII). Suitable preservatives include citric acid and potassium sorbate [0143]. Citric acid may also be used as a diluent (Table XXVII). Preservatives may be administered with an alkaline solution (Table XXVI). Water may be used as a diluent (see entire document, e.g. Table XXVI). Van Der Lelie also teaches that compositions can include insecticide, fungicide, nematicide, bacteriocide, biostimulant, herbicide, plant extract, microbial extract, plant growth regulator, fertilizer or crop nutrient product present in an amount suitable to benefit the plant growth and/or to confer protection against the plant pest in the susceptible plant [0080]. (sic) Van Der Lelie also teaches embodiments in which an adjuvant is selected from surface acting agents (surfactants), preservatives, antifreezes, antifoams, buffers and pH modifying substances [0122].
Therefore, it would have been prima facie obvious to a person of ordinary skill in the art, prior to the effective filing date of the claimed invention, to follow the teachings of Van Der Lelie of an agricultural composition comprising an anti-pathogenic compound and a chemical activator because the prior art recognized components, and respective amounts thereof taught for incorporation into an agricultural composition for that recognized purpose. See MPEP 2141.03(1) Level of Ordinary Skill in the Art. There is a natural expectation of success from choosing known agricultural compounds for incorporation into an agricultural composition would successfully formulate an agricultural composition where each of the components would be chosen for its prior art recognized and established use and amount. Furthermore, Bacillus thuringiensis is taught by Van Der Lelie as useful in controlling nematodes, insects and fungal pests. See MPEP 2144.05(Il)(A) Optimization Within Prior Art Conditions or Through Routine Experimentation.
A person of ordinary skill in the art would have been motivated to choose urea, potassium
sorbate, citric acid, isopropyl myristate, an anionic and nonionic surfactant because all of those components were known to be useful in the field of agricultural compositions and would
therefore have a reasonable expectation of success to arrive at an agricultural composition having
a pH of between 4 and 6. See 2113 Product-by Process Claims. The skilled artisan would know a
citric acid compound would have an acidic (low) pH, an alkaline diluted preservative would be
expected to have an alkaline (high) pH and a pH modifying substance or buffer would be used to
adjust an agricultural solution to desired pH.
Response to Arguments
Applicant's arguments filed 03/09/2026 have been fully considered but they are not persuasive.
Applicant argues the closed transitional phrase "consisting of" and therefore as argued by applicant in the previous response filed 03/31/2025 features of amended claim 1 are absent namely. (1) urea, (2) at least one (C1-C8) alkyl ester of an (C12- C16) alkyl acid wherein the at least one (C1- C8) alkyl ester of an (C12 - C16) alkyl acid is selected from the group consisting of isobutyl laurate, isopentyl laurate, 2-ethylhexyl laurate, 2-ethylhexyl palmitate, isopropyl laurate, isopropyl myristate, isopropyl palmitate, and combinations thereof, (3) an anionic surfactant selected from the group consisting of: (C6-C18) alkyl benzene sulfonic acid salts, sodium lauryl ether sulfate, sodium lauryl polyoxyethylene ether sulfate, and combinations thereof, and (4) nonionic surfactant is an ethoxylated alcohol having a degree of ethoxylation of from 1 to 50, and the particular claimed wt % and ratios are not disclosed or suggested.
Examiner acknowledges the closed transitional phrase “consisting of” applies to the limitations of claim 1 in regards to an anti-pathogenic compound and a chemical activator and as such Van Der Lelie remains relevant. The use of an open ended transitional phrase “comprising” still applies to the combinations of 1) an antipathogenic compound and 2) a chemical activator. See MPEP 2111.03 and MPEP 2113. As cited in the claim interpretation section of the Non-Final rejection dated 10/07/2025, The claim limitations of :
(1) an anti-pathogenic compound comprising water, potassium sorbate and urea, and;
(2) a chemical activator comprising water, aqueous citric acid, and least one (Cl -C8) alkyl ester of an (Cl2- C16) alkyl acid, an anionic and nonionic surfactant, and anti-pathogenic compound are being interpreted as preliminary steps for making the recited agricultural composition having a pH of between 4 and 6 are considered as a product by process claim. As such, the formation of the chemical activator and the anti-pathogenic compound are not considered to be required by the instant claims. See MPEP 2113 Product-by-Process Claims and MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions.
Applicants argue that the exemplary formulations of Van Der Lelie include Bacillus thuringiensis isolate RTI545. Applicants submit the exemplary embodiments vary and omit features instantly claimed. Examiner does not find this argument persuasive because a prior art reference is relevant for all that it would have reasonably suggested to a person having ordinary skill in the art, including nonpreferred embodiments. MPEP 2123. Examiner further notes that the instant claims recite the open-ended transition phrase "comprising" in instant claim 1, line 2 and 6, claim 12, line 2 and claim 31, line 1, which permits the inclusion of non-recited components. MPEP 2111.03(1). As such, components such as the Bacillus thuringiensis isolate RTI545 of Van Der Lelie are permitted in the instant claims.
Applicants argue that Van Der Lelie teaches away from the instant claims because low concentrations of preservatives and diluents are taught and increasing such concentrations would compromise the microbial integrity of Bacillus thuringiensis isolate RTI545. Applicants add that if the concentration of potassium sorbate were increased, the Bacillus would not grow and Van Der Lelie would be rendered unsuitable for its intended purpose. Examiner does not find this argument to be persuasive. Arguments of counsel cannot take the place of probative evidence. MPEP 716.01. Even if Applicants did have probative evidence to support their argument, Examiner reiterates that Van der Lelie is not limited to preferred embodiments, which includes embodiments containing Bacillus thuringiensis isolate RTI545. MPEP 2123.
Applicants argue that the rejection lacks motivation and predictability. Examiner does not find these arguments persuasive because, as discussed above, selecting prior art elements for the art recognized function is prima facie obvious. MPEP 2143.
Conclusion
All claims are rejected, no claims are 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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERNESTO VALLE JR whose telephone number is (703)756-5356. The examiner can normally be reached 0730-1700 M-F EST, 1st Friday off.
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, Adam C Milligan can be reached at 571-270-7674. 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.
/E.V./Examiner, Art Unit 1623
/SAMANTHA L SHTERENGARTS/Primary Examiner, Art Unit 1623