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 .
The previous claim rejections made under 35 U.S.C. 112 (b) as indicated in the Office action mailed on March 27, 2025 have been withdrawn in view of applicant’s amendment made to claims 11, 15 and 16 which defines the term “uptake enhancers” to specific compounds and the amendment made to claim 16 that deletes “such as” and “but also of”.
The previous claim rejection made under 35 U.S.C. 102 (a) over Zhang (CN 106689122 A) has been also withdrawn in view of the amendment to claims 11, 15 and 16 which require specific uptake enhancer compounds and the concentration and applied amounts thereof.
The previous claim rejection made under 35 U.S.C. 102/103 over Zhang has been withdrawn for the same reason.
All previous double patenting rejections have been withdrawn for the same reason.
A new rejection has been made to address the amended claims and new claims.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 12 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 12 depends on claim 11 and requires that the applied amount of the a) of the formulation in claim 11 to the crop is between 2 and 250 g/ha. However, the base claim limits such amount to be between 5-250 g/ha. Claim 12 is an improper dependent claim since the dependent claim improperly broadens the scope of the limitation of the base claim.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
The text of those sections of 35, U.S.102 which is applicable in this rejection is recited above.
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 11, 12, 14-21 are rejected under 35 U.S.C. 103 as obvious over Zhang et al. (CN 106689122 A, published May 24, 2017) (“Zhang” hereunder).
Zhang teaches ultra-low volume spraying method and unmanned agricultural plant protection method, the method comprising applying a pesticidal formulation comprising a) an active ingredient such as emamectin benzoate, b) an auxiliary spray agent which contains plant oil or modified plant oil, c) other formulants such as an emulsifying agent, moisturizer/wetting agent, adhesive/binder, pH regulator, etc. and d) water as the carrier. See translation, abstract. The plant oil or modified plant oil used as the auxiliary spray agent include peanut oil, corn oil, soybean oil, rapeseed oil, etc., which are esterified to form fatty acid methyl ester, fatty acid ethyl ester or methyl oleate, etc. See p. 7, [0010].
Embodiment 8 discloses a test using 5.7 % emamectin benzoate WDG (water dispersible granules) is applied to rice plants at the spray volume at the rate of 1L/mu, which is equal to 15 L/ha (1 mu = 1/15 hectare). See present claims 11, 14 and 21.
Zhang generally teaches 0.3-2 wt % of the spray adjuvant is added to pesticide formulations. See translation, [0018]. In Embodiment 8, 0.3 %, 0.5%, 1 % and 2% of the spray adjuvant was used, according to Table 4. The one percent of the spray aid, for example, would be present in the formulation in an amount of 10 g/L. Zhang teaches a various spray adjuvant formulations, including Embodiment 1, which contains 50-90 parts by weight of a modified plant oil and emulsifiers, moisturizers, adhesives and a pH regulator. See [0006-0007]. With 1% of such spray adjuvant would provide the esterified plant oil in the amount of 5-9 g/L of the formulation, which is within the concentration range of the b) one or more uptake enhancers in the present claim 11.
When 1 % the spray aid was used, assuming the spray aid similar to water in density, 1 wt % of 1 L = 10 mL of spray adjuvant, and it can be said that about 10 g/L was used per mu, which is equivalent to 150 g/ha. Assuming that 50-90 parts by weight of the spray aid is the modified oil component, or the uptake enhancing agent as defined by applicant, the applied amount would be about 97.5-127.5 g/ha. See present claim 11.
Regarding claim 12, the reference teaches that with the spray adjuvant, an improved efficacy was achieved with a less dose of the 5.7 % emamectin benzoate WDG, which was applied in the amount of 11.2 g/mu, which is equivalent to 168 g ha (1 mu = 1/15 ha). Since the reference teaches that a higher control efficacy is achieved when the spray adjuvants are added, one of ordinary skill in the art would have been obviously motivated to find an optimum, lower amount of the pesticide that could be effectively used.
Regarding claims 15-17, the spray method was carried out by using an electric delta-wing drone, which can be considered an unmanned aerial vehicle or an unmanned guided vehicle. As for the specific one or more uptake enhancers, Zhang suggests using rapeseed oil methyl esters. See translation, [0010]. Using any of the disclosed modified vegetable oils as the main component of the spray aid within the suggested amount would have been prima facie obvious.
Regarding claim 18, the Embodiment 8 formulation contains 5.7% emamectin benzoate in one liter; assuming the formulation density of about 1 g/mL, the active ingredient a) is present in an amount of about 57 g/L. As discussed above, the uptake enhancer b) is present in an amount ranging from 5-9 g/L when 1 % of the spray adjuvant is used. Other formulants including the emulsifiers, moisturizer/wetting agent, an adhesive/binder, a pH adjusting agent can be present in an amount ranging from 10-50% of the spray adjuvant; when 1 % of the spray adjuvant is present in the formulation, 1-5 g/L of such formulants would be present. Since a formulation according to the teachings and suggestions of Zhang would contain the components a)-d) within the presently claimed limitations, claim 18 is deemed prima facie obvious over prior art.
Regarding claim 19, the Zhang Embodiment 9 shows a formulation comprising tebuconazole to treat apple brown spot disease. Using tebuconazole to make a formulation for controlling this specific disease would have been prima facie obvious.
Regarding claim 20, Zhang teaches that the emulsifiers in the spray adjuvant include nonionic surfactants and anionic surfactants, present in an amount ranging from 5-40 parts by weight of the spray adjuvant. See translation, [0011-0013]. Such amount in a diluted formulation, when 1% of such spray adjuvant is present, would be about 0.5-4 g/L. See present claim 20 c1).
Conclusion
Claims 11, 12 and 14-21 are rejected.
Claims 1-9 have been withdrawn from consideration.
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.
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/GINA C JUSTICE/Primary Examiner, Art Unit 1617