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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 10/27/2025 has been entered.
Priority
The instant application, filed 12/08/2021, is a National Stage entry of PCT/EP2020/065140, filed 06/02/2020, which claims priority to EP19180489.7, filed on 06/17/2019.
Status of Application and Claims
The amendment filed 10/25/2025 is acknowledged. Claims 1 and 8-10 are currently amended. Claims 2-4, 6-7, 16-18, and 21 are cancelled. Claims 22-28 are newly added. Claims 1, 5, 8-15, 19-20, and 22-28 are currently pending and are examined on the merits herein.
No claims are allowed.
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, 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 non-obviousness.
Berlin and Kwon
Claims 1, 5, 9, 13-15, 20, 24, 26, and 28 are rejected under 35 U.S.C. 103 as being unpatentable over WO2015/134691A1 (Berlin) published 09/11/2015 (machine translation is relied upon for the rejection cited in PTO-892 01/27/2026) in view of KR100844193B1 (Kwon) published 2008-04-07 (machine translation is relied upon for the rejection cited in PTO-892 01/27/2026).
Berlin teaches agrochemical composition comprising agriculturally beneficial agents and a polymeric carrier. Berlin discloses use of fungicides such as azoxystrobin and pyraclostrobin (P.g.22, lines 22-25), which reads on the fungicide of claim 1, and agriculturally beneficial mineral such as tourmaline (P.g.40, line22) in the formulation, which reads on the tourmaline of claim 1. Berlin further teaches that formulation may comprise one or more minerals including tourmaline and minerals distinct from tourmaline for e.g., kaolin, magnetite, ferrite etc. (Pg.40, lines 17-26), which reads on one or more additional mineral compound distinct from tourmaline as recited in claim 28.
Berlin teaches method of treating plant, part of plant, and seed by spraying the agrochemical composition comprising fungicides and tourmaline. (P.g.44, lines 28-35), which reads on claims 13 and 14. Berlin also teaches that the composition is also suitable for foliar application to plant (P.g.41, lines 23-24) which reads as applying composition directly on to plant as recited in claim 14, and reads on composition applied onto the foliar system of a plant as recited in claims 15 and 20.
Berlin does not explicitly teach the particle tourmaline with D90 size of 1 to 15 μm as recited in the instant claim 1. Berlin fails to teach the amount of tourmaline from 0.15 to 10% by weight in the composition as recited in instant claim 5 and 0.15 to 2% by weight as recited in the instant claim 26. Berlin also does not explicitly teach aqueous liquid carrier in the agrochemical composition as recited in claim 1. Berlin also fails to teach the aqueous carrier is water or water mixed with one or more organic fluid as recited in claim 9 and further the aqueous carrier is water as recited in claim 24. Berlin despite teaching one or more additional mineral distinct from tourmaline in the composition as recited in claim 28, fails to teach weight range of 0.05 to 2% of one or more additional mineral compound.
Kwon teaches fertilizer composition comprising tourmaline in a liquid phase for promoting plant growth by improving absorption of trace minerals (Pg.2, [003], lines 4-7 and 13-15;). Kwon teaches amount of tourmaline in range of 1 to 50% by weight (Pg.2, [003], lines 13-15). Kwon also teaches that tourmaline is in powder form with particle size of 200-2000 mesh which examiner calculated as 8-80 μm (Pg.4, claim 4).
For claims 1, 9, and 24
It would have been obvious for a person of ordinarily skills in the art before the effective filing date of the claimed invention to modify the agrochemical composition comprising tourmaline and fungicide as taught by Berlin according to Kwon to arrive at the instantly claimed invention. An ordinarily skilled artisan would have been motivated to use the tourmaline of size range 8-80 μm of Kwon in the agrochemical composition of Berlin because Kwon teaches fertilizer composition comprising tourmaline of particle of size range 8-80 μm to improve absorption of trace mineral nutrients and promote growth of plants (Pg.1, [001], lines 6-10). In doing so, the tourmaline particle size range of 8-80 μm taught by Kwon would be prima facie obvious over tourmaline D90 size of 1 to 15 μm (MPEP § 2144.05 (I)). The instant specification defines D90 size as the “value in the particle size distribution of a sample where 90% of the particles present in the sample are equal or below that value” (instant specification page 3 lines 9-16). Therefore, it is reasonably assumed that when all the particles in the composition are 8 μm (lower size of the range taught by Kwon), they will all exhibit D90 sizes of less than or equal to 8 μm.
A person of ordinary skills in the art would have reasonable expectation of success of achieving such modifications because Berlin teaches the agrochemical composition comprising agrochemically beneficial agents including tourmaline and fungicide for enhancing plant growth by applying formulation to a seed, a plant, a plant part, and soil (Pg.2, lines 35-36) and Kwon teaches the benefits of using tourmaline particle of particular size range to improve plant growth by increasing the absorption of trace nutrients ([001], lines 6-10).
Regarding the aqueous carrier, it would have been obvious for a person of ordinarily skills in the art before the effective filing date of the claimed invention, to add the aqueous carrier in the formulation taught by Berlin because Berlin suggests that the formulation can be in any form known in the art including spray concentrate, water dispersible granules etc., and that liquid formulation may be suitable for foliar application to plant (Pg. 41, lines 20-24). Therefore, a skilled artisan would have been motivated to formulate the agrochemical composition taught by Berlin, with aqueous carrier for foliar application to plant with a reasonable expectation of success because Berlin demonstrates that the agrochemical formulation can be in any form known in the art (Pg.41, lines 20-21). Obviousness exists when some teaching, suggestion, or motivation in the prior art would have led one of ordinary skill to modify the prior art reference to arrive at the claimed invention. (MPEP 2143 I(G))
Alternatively, it would have been obvious for a person of ordinary skills in the art before the effective filing date of the instant application to combine teachings of Berlin and Kwon to arrive at instantly claimed invention of claim 1 because Berlin teaches composition comprising tourmaline and fungicide for enhancing plant growth (Pg.2, lines 35-36) and Kwon teaches the tourmaline in liquid phase (water) is effective for transferring trace nutrients to plants and promote plant growth (Pg.2, [003], lines 4-7 and 13-15;). It would have been obvious for a skilled artisan to modify agrochemical composition taught by Berlin according to Kwon by adding tourmaline and aqueous carrier to arrive at claimed invention of instant claim 1.
A person of ordinary skills in the art would have reasonable expectation of success of achieving such modifications because Berlin teaches the agrochemical composition comprising agrochemically beneficial agents including tourmaline and fungicide for enhancing plant growth by applying formulation to a seed, a plant, a plant part, and soil (Pg.2, lines 35-36) and Kwon teaches the benefits of using tourmaline particle in liquid phase (water) is effective in increasing the absorption of trace nutrients and promote plant growth (Pg.2, [003], lines 4-7 and 13-15;).
For claims 5 and 26
It would have been obvious for a person of ordinarily skills in the art before the effective filing date of the claimed invention to modify the agrochemical composition comprising tourmaline and fungicide as taught by Berlin according to Kwon to arrive at the instantly claimed invention. An ordinarily skilled artisan would have been motivated to use the tourmaline in range of 1 to 50% by weight as taught by Kwon in the agrochemical composition of Berlin, to promote plant growth by increasing trace nutrient absorption by plants (Pg.2, [003], lines 4-7 and 13-15) as suggested by Kwon. It would have been obvious for a skilled artisan to further optimize the amount in % by weight of tourmaline through routine optimization to arrive at claimed concentration ranges of 0.15 to 10% by weight as recited in claim 5 and 0.15 to 2% by weight as recited in claim 26.
A person of ordinary skills in the art would have reasonable expectation of success of achieving such modifications because Kwon teaches that using tourmaline particle at concentration of 1 to 50% by weight in liquid phase (water) is effective in increasing the absorption of trace nutrients and promote plant growth (Pg.2, [003], lines 4-7 and 13-15). Therefore, a skilled artisan would have reasonable expectation of success to modify agrochemical composition of Berlin according to Kwon and further optimize the amount of tourmaline by routine optimization to arrive at claimed invention of claims 5 and 26.
Berlin, Kwon, and Hao
Claims 1, 5, 8, 9, 10-12, 13-15, 19, 20, 22, 23, 24, 25, 26, 27, and 28 are rejected under 35 U.S.C. 103 as being unpatentable over WO2015/134691A1 (Berlin) published 09/11/2015 (machine translation is relied upon for the rejection cited in PTO-892 01/27/2026) in view of KR100844193B1 (Kwon) published 2008-04-07 (machine translation is relied upon for the rejection cited in PTO-892 01/27/2026) as applied to claims 1, 5, 9, 13-15, 20, 24, 26, and 28 above, and further in view of CN105432641A (Hao) published on 03/30/2016 (machine translation is relied upon for the rejection cited in PTO-892 01/27/2026).
Berlin and Kwon collectively fails to teach the fungicides in total amount ranging from 0.1 to 50 g/L as recited in instant claim 8 and further narrow range of 0.5 to 30 g/L as recited in instant claim 23. Berlin and Kwon collectively do not teach composition comprising two fungicides as recited in claim 22. Berlin and Kwon collectively do not teach the water is at least 20% by weight in the composition as recited in instant claim 10. Berlin and Kwon collectively do not teach dispersant recited in the instant claim 11, the range of dispersant from 0.0005 to 0.05% as recited in the instant claim 12, the specific dispersant selected from the group consisting of polycarboxylate polymers as recited in claim 19, and the narrow range of dispersant ranging from 0.0005 to 0.02% as recited in the claim 25. Berlin and Kwon further collectively fails to teach thickening agent in range of 0.0005 to 0.05% and is chosen from polysaccharides as recited in claim 27.
Hao teaches formulating pyraclostrobin and azoxystrobin by combining them with adjuvants to achieve wider fungicidal range, stronger control efficacy, longer-lasting effect, low resistance risk, and safety for crops ([009]). In its embodiments, Hao teaches fungicide composition comprising two fungicides pyraclostrobin and azoxystrobin (Pg.4, [0012]) and an aqueous liquid carrier (Pg.5, [0015]) which reads on fungicides of the Markush group of fungicides claimed in instant claim 22. Hao exemplifies its fungicide composition comprising 20% pyraclostrobin, 15% azoxystrobin, 3% polycarboxylate which reads on dispersant claimed in instant claims 11, 12, 19, and 25, 0.15% xanthan gum which reads on polysaccharide thickener claimed in instant claim 27, mineral which is 2% magnesium aluminum silicate, and sufficient amount of water (calculated as 65%) to prepare 35% fungicide aqueous suspension which reads on “least 20% by weight of water” as recited in instant claim 10. (Pg. 9, Example 3, [0050]).
For claims 8 and 23
It would have been obvious for a person of ordinary skills in the art before the effective filing date of the instant application to modify collective teachings of Berlin and Kwon according to Hao to arrive at instantly claimed inventions. It would be obvious for a person having ordinary skill in the art to try using amount of fungicide taught by Hao (e.g., 15% azoxystrobin in exemplary formulation [0050]), in the agrochemical composition collectively taught by Berlin and Kwon, and perform routine optimization with the diluent (water) to arrive at amount of fungicide claimed in claims 8 and 23.
A person of ordinary skill in the art would have reasonable expectation of success of achieving such modifications since Hao has demonstrated that the amount of fungicide is result effective and is routinely optimized for desired results.
For claim 22
It would have been obvious for a person of ordinary skills in the art before the effective filing date of the instant application to modify collective teachings of Berlin and Kwon according to Hao to arrive at instantly claimed inventions. A skilled artisan would have been motivated to use two or more fungicides according to Hao in the agrochemical composition collectively taught by Berlin and Kwon because Hao teaches that combination of two fungicides has significant synergistic effect, reduces amount of fungicide usage, has no adverse effect on plants ([0067], lines 9-15), reduces environmental pollution of pesticides, and increases crop safety (Abstract). (MPEP 2144 II).
A person of ordinary skill in the art would have reasonable expectation of success of achieving such modifications since Hao has demonstrated that use of combination of fungicides is routine and known in the art.
For claims 10-12, 19, 25, and 27
It would have been obvious for a person of ordinary skills in the art before the effective filing date of the instant application to modify collective teachings of Berlin and Kwon according to Hao to arrive at instantly claimed inventions. Ordinary skilled artisan would have been motivated to modify agrochemical composition of Berlin according to Kwon, and further formulate according to Hao because Hao teaches that combining different ingredients can improve the control effect, expand the bactericidal range, reduce the amount of active ingredients used, save on fungicide costs, and reduce environmental pollution ([0009]). Therefore, it would have been obvious for a skilled artisan to formulate agrochemical composition of Berlin comprising fungicide and tourmaline with tourmaline particles modified according to Kwon, by adding polycarboxylate dispersant, polysaccharide thickener, and aqueous carrier as taught by Hao to arrive at claimed invention of claims 10-12, 19, 25, and 27.
A person of ordinary skill in the art would have reasonable expectation of success of achieving such modifications since Hao has demonstrated that formulating fungicide using dispersants, thickener, and carrier in the formulations of fungicide is routine and known in the art.
Regarding the amount of dispersant, it would have been obvious for a person of ordinary skills in the art before the effective filing date of the claimed invention to add the amount of dispersant (3%) taught by Hao (Pg. 9, Example 3, [0050]), in the agrochemical composition of Berlin comprising fungicide and tourmaline modified according to Kwon and further optimize the amount of dispersant through routine optimization to arrive at the claimed amount range 0.0005 to 0.05% as recited in the instant claim 12 and 0.0005 to 0.02% as recited in the claim 25. It would have been prima facie obvious for a skilled artisan to perform routine experimentation of concentration of dispersant to improve dispersibility or spraying of fungicidal composition and arrive at the claimed invention.
A person of ordinary skill in the art would have reasonable expectation of success of achieving such modifications since Hao has demonstrated that use of dispersant in the formulations of fungicide formulating fungicide using dispersants, thickener, and carrier in the formulations of fungicide is routine and known in the art.
Regarding thickener, it would have been obvious for a person of ordinary skills in the art before the effective filing date of the claimed invention to add the amount of thickener (0.15%) taught by Hao (Pg. 9, Example 3, [0050]), in the agrochemical composition of Berlin comprising fungicide and tourmaline modified according to Kwon and further optimize through routine experimentation to arrive at the claimed amount of thickener range of 0.0005 to 0.05% in claim 27.
A person of ordinary skill in the art would have reasonable expectation of success of achieving such modifications since Hao has demonstrated that formulating fungicide formulating fungicide using dispersants, thickener, and carrier in the formulations of fungicide is routine and known in the art.
Rabot and Hao
Claims 1, 5, 8-12, 19, and 22-28 are rejected under 35 U.S.C. 103 as being unpatentable over WO2017/186860A1 (Rabot) published 11/02/2017 (machine translation is relied upon for the rejection cited in PTO-892 01/27/2026) in view of CN105432641A (Hao) published on 03/30/2016 (machine translation is relied upon for the rejection cited in PTO-892 01/27/2026).
Rabot teaches seed coating formulation comprising silicate minerals such as tourmaline (Pg.5, line 25) as a source of micronutrients and fungicide, to enhance plant germination, growth and/or survival (Pg.1, lines 11-13). Rabot teaches silicate mineral (e.g., tourmaline) particles has average particle size of greater than 5 μm and less than 150 μm (Pg.3, lines 16-17). Rabot further teaches the formulation can be aqueous solution or aqueous suspension or an aqueous dispersion (Pg. 11, lines 23-26) and is suitable to spray on to plants or plant part. (Pg.41. lines 21-24).
The instant specification defines D90 size as the “value in the particle size distribution of a sample where 90% of the particles present in the sample are equal or below that value” (instant specification page 3 lines 9-16). Therefore, it is reasonably assumed that when all the particles in the composition are 5 μm, they will all exhibit D90 sizes of less than or equal to 5 μm. The tourmaline particle size range of 5-150 μm as taught by Rabot is prima facie obvious over tourmaline with D90 size ranging from 1 to 15 μm of instant claim 1.
Rabot further teaches that the concentration of tourmaline in the seed coating formulation is 10 wt% to 90 wt% (Pg.9, line 31) which is prima facie obvious over tourmaline concentration of 0.15 to 10% by weight claimed in instant claim 5 (MPEP 2144.05 (1)). A prima facie case of obviousness exists where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Rabot also teaches that the seed coating formulation is an aqueous solution (Pg. 11, lines 23-26) which reads on water carrier of instant claims 9 and 24. Rabot teaches seed coating formulation comprising 0.1 wt% to 50 wt% dispersant which is prima facie obvious over dispersant of instant claim 11 and range of 0.0005 to 0.05% of instant claim 12, and further narrow range of 0.0005 to 0.02% dispersant of instant claim 25. Rabot also teaches 1 wt% to 90 wt% xanthan gum which reads on thickening agent recited in instant claim 27. Rabot additionally teaches additional minerals different from tourmaline that can be used in the seed coating formulation (Pg.6, lines 20-35) which reads on additional minerals of claim 28.
Rabot fails to explicitly teach that the fungicide is selected from the group consisting of azoxystrobin, pyraclostrobin, prothioconazole, epoxiconazole, mancozeb, fluxapyroxad, benzovindiflupyr and bixafen, and mixtures thereof as recited in instant claim 1. Rabot also fails to teach the amount of tourmaline in narrow range of 0.15 to 2% by weight as recited in the instant claim 26. Rabot does not explicitly teach the fungicides in total amount ranging from 0.1 to 50 g/L as recited in instant claim 8 and further narrow range of 0.5 to 30 g/L as recited in instant claim 23. Rabot does not teach composition comprising two fungicides as recited in claim 22. Rabot does not teach the water is at least 20% by weight in the composition as recited in instant claim 10. Rabot fails teach dispersant selected from the group consisting of polycarboxylate polymers as recited in claim 19. Rabot further fails to teach thickening agent in range of 0.0005 to 0.05% and is chosen from polysaccharides as recited in claim 27. Rabot, despite teaching one or more additional mineral compounds distinct from tourmaline, fails to teach amount of additional mineral compound from 0.05 to 2% by weight as recited in claim 28.
Hao teaches fungicide composition comprising two fungicides pyraclostrobin and azoxystrobin (Pg.4, [0012]) and an aqueous liquid carrier (Pg.5, [0015]) which reads on fungicide of the Markush group of fungicides claimed in instant claims 1. Hao also teaches mineral, and other ingredients in the fungicide composition for application to crops with the aim of high efficacy, broad fungicidal range, low risk of pathogen resistant, and safety for crops.
Hao teaches fungicide composition comprising pyraclostrobin and azoxystrobin (Pg.4, [0012]) which reads on at least two fungicides of the Markush group of fungicides claimed in instant claim 22 and an aqueous liquid carrier (Pg.5, [0015]). Hao exemplifies its fungicide composition (Pg. 9, Example 3, [0050]) comprising 20% pyraclostrobin, 15% azoxystrobin, 3% polycarboxylate which reads on dispersant claimed in instant claim 19, 0.15% xanthan gum which reads on a polysaccharide thickener claimed in instant claim 27, mineral which is 2% magnesium aluminum silicate, and sufficient amount of water (calculated as 65%) to prepare 35% fungicide aqueous suspension which reads on “least 20% by weight of water” as recited in instant claim 10. The amount of thickener (0.15%) is prima facie obvious over claimed range of 0.0005 to 0.05% thickener in instant claim 27. Hao also teaches use of 5% to 80% by weight of fungicide in the formulation ([0013]) which is calculated as 50 to 800 g/L.
For claim 1
It would have been prima facie obvious for a person of ordinarily skills in the art before the effective filing date of the instant application to use fungicides taught by Hao in the seed coating composition taught by Rabot. A skilled artisan would have been motivated to use fungicides (pyraclostrobin and azoxystrobin) taught by Hao in the seed coating formulation to enhance plant germination, growth and survival because Hao teaches that pyraclostrobin and azoxystrobin are useful for prevention and control of diseases in wide range of crops including fruit trees, wheat, rice, and vegetables, and is particularly effective against diseases such as downy mildew, black spot, leaf spot, powdery mildew, and rice blast ([0030]). Obviousness exists when some teaching, suggestion, or motivation in the prior art would have led one of ordinary skill to modify the prior art reference to arrive at the claimed invention. (MPEP 2143 I(G))
A person of ordinary skill in the art would have reasonable expectation of success of achieving such modifications both Rabot and Hao teach use of fungicide in agrochemical compositions with aim of improving survival and safety of plants/crops and Hao has demonstrated that use of pyraclostrobin and azoxystrobin in treating crops diseases is routine and known in the art.
For claims 8 and 23
It would have been obvious for a person of ordinary skills in the art before the effective filing date of the instant application to modify the seed coating formulation containing fungicide and tourmaline in aqueous carrier taught by Rabot and add the fungicide at amount (15% which is calculated as 150 g/L) taught by Hao (Pg. 9, Example 3, [0050]) and further optimize with diluent (water) through routine optimization to arrive at claimed invention of claims 8 and 23. It would have been obvious for a skilled artisan to optimize the amount of fungicide in the seed coating formulation to achieve desired fungicidal effects.
A person of ordinary skill in the art would have reasonable expectation of success of achieving such modifications both Rabot and Hao teach use of fungicide in agrochemical compositions with aim of improving survival and safety of plants/crops.
For claim 28
It would have been obvious for a person of ordinary skills in the art before the effective filing date of the instant application to try additional mineral compound distinct from the tourmaline particle as taught by Rabot and optimize the % weight amount by routine optimization to arrive at the claimed invention of claim 28 because Rabot teaches several other minerals that are also agriculturally beneficial and can be used in the seed coating composition to enhance plant growth. It would have been obvious for a skilled artisan to use additional mineral particles at concentration of tourmaline (10 wt% to 90 wt%) as taught by Rabot (Pg.9, line 31) and optimize through routine experimentation and arrive at claimed amount recited in claim 28.
A person of ordinary skill in the art would have reasonable expectation of success of achieving such modifications because both Rabot teaches that several silicate minerals including tourmaline and those different than tourmaline are source of micronutrient that enhance seed germination, growth and/or survival (Pg.4, lines 8-13+).
For claims 10, 19, 22, and 26-27
It would have been obvious for a person of ordinary skills in the art before the effective filing date of the instant application to modify seed coating formulation taught by Rabot according to Hao and arrive at claimed invention. It would have been prima facie obvious for a skilled artisan to modify seed coating formulation of Rabot and add at least two fungicides (pyraclostrobin and azoxystrobin) as taught by Hao and formulate according to exemplary formulation (Pg. 9, Example 3, [0050]) because Hao teaches the formulation is beneficial in treating variety of plant diseases (Abstract). In doing so, the limitations of claims 10, 19, 22, and 27 would be satisfied by the collective teachings of Rabot and Hao.
A person of ordinary skill in the art would have reasonable expectation of success of achieving such modifications because both Rabot and Hao teach agrochemical compositions for improving survival and safety of plants/crops and Hao has demonstrated the formulation of fungicide comprising dispersants, thickeners, and minerals for treating crops diseases is routine and known in the art.
Rabot, Hao, and Berlin
Claims 1, 5, 8-12, 13-15, 19, 20, and 22-28 are rejected under 35 U.S.C. 103 as being unpatentable over WO2017/186860A1 (Rabot) published 11/02/2017 (machine translation is relied upon for the rejection cited in PTO-892 01/27/2026) in view of CN105432641A (Hao) published on 03/30/2016 (machine translation is relied upon for the rejection cited in PTO-892 01/27/2026) as applied to claims 1, 5, 8-12, 19, and 22-28 above, in further view of WO2015/134691A1 (Berlin) published 09/11/2015 (machine translation is relied upon for the rejection cited in PTO-892 01/27/2026).
Collective teachings of Rabot and Hao fails to teach the plant treating method comprising applying the agrochemical composition onto or next to at least one part of said plant as recited in instant claim 13. The collective teachings fail to explicitly teach that the composition is applied directly to plant or diluted before the application as recited in the instant claim 14. The collective teachings fail to teach applying composition on to foliar system of the plant as recited in the instant claim 15 and further spraying the composition on to leaves of the plant as recited in the dependent claim 20.
Berlin teaches method of treating plant, part of plant, and seed by spraying the agrochemical composition comprising fungicides and tourmaline. (P.g.44, lines 28-35), which reads on claims 13 and 14. Berlin also teaches that the composition is also suitable for foliar application to plant (P.g.41, lines 23-24) which reads as applying composition directly on to plant as recited in claim 14, and reads on composition applied onto the foliar system of a plant as recited in claims 15 and 20.
It would have been obvious for a person of ordinarily skills in the art before the effective filing date of the instant application to use the seed coating composition of Rabot modified with teachings of Hao, and use with method taught by Berlin for treatment of plants or crops. A skilled artisan would have been motivated to use the seed coating composition of Rabot modified according to Hao and apply to plants, part of plants, and seed as taught by Berlin because both Rabot and Berlin teaches agrochemical composition comprising fungicide and tourmaline aiming at enhancing plant germination, growth, and/or survival.
A person of ordinary skill in the art would have reasonable expectation of success of achieving such modifications since Berlin has demonstrated that treating plants by applying agrochemical composition to plants, plant parts and seeds is routine and known in the art.
Double Patenting
The non-statutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A non-statutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on non-statutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a non-statutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
US 12/317,899, Berlin and Kwon
Claims 1, 5, 9-10, 13-15, 20, 24, and 26 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 1-3, 12-14, 17 and 21 of U.S. Patent No. 12,317,899 B2 in view of WO2015/134691A1 (Berlin) published 09/11/2015 (machine translation is relied upon for the rejection cited in PTO-892 01/27/2026) in further view of KR100844193B1(Kwon) published 2008-04-07 (machine translation is relied upon for the rejection cited in PTO-892 01/27/2026).
US'899 claims an agrochemical composition comprising particles of at least one silicate selected from the group consisting of tourmalines, and at least one guar (claim 1). US'899 further claims that the size of the particles of silicate ranges from 0.1 to 30 μm (claim 2). US'899 claims that the particles of at least one silicate represent from 2-78% by weight of the total composition (claim 3). US'899 further claims agrochemical composition is in liquid form (claim 11). US'899 further claims the agrochemical composition comprises one or more fungicide(s) (claim 12). US'899 also claims the agrochemical composition compromises a carrier chosen from water or water mixed with one or more organic fluid(s) (claim 13). US'899 claims the composition comprises 20% by weight of water (claim 14). This reads on instant claims 2, 9-10, and 24. Furthermore, US'899 claims a method for treating a plant wherein its agrochemical composition is applied onto at least one part of said plant (claim 17). US'899 claims the composition is applied onto the system of the plant (claim 21). Therefore, US'899 also reads on instant claims 13-15.
US'899 differs from the instant invention in that it doesn't claim the size of the particles of tourmaline (silicate) is a D90 size, as recited in instant claim 1. US'899's weight range for the particles of at least one silicate differ from the range claimed in instant claim 5 and claim 26, which recites 0.15-10% and 0.15 to 2% by weight of the composition respectively. US'899 also doesn't claim the one or more fungicide(s) are selected from a group consisting of azoxystrobin, pyraclostrobin, prothioconazole, epoxiconazole, mancozeb, fluxapyroxad, benzovindiflupyr and bixafen, and mixtures thereof, as recited in instant claim 1. Finally, US'899 doesn't claim that the agrochemical composition is applied onto the leaves of the plant, as recited in instant claim 20.
Berlin discloses agrochemical composition comprising fungicides such as azoxystrobin and pyraclostrobin (P.g.22, lines 22-25) and tourmaline (P.g.40, line22) in the formulation, to enhance plant growth. Berlin also teaches the formulation can be water dispersible granule and is suitable to spray on to plants or plant part. (Pg.41. lines 21-24).
Kwon teaches fertilizer composition containing tourmaline as an absorption promoting agent of an inorganic and nutritional ingredients in a plant body. Kwon teaches that tourmaline is 200-2000 mesh (reads particle size of 8-80 micron) and is diluted with water and sprayed on the leaves.
It would have been obvious for an ordinarily skilled artisan to combine the claims of US'899 with the teachings of Hao, and Kwon and use the fungicides pyraclostrobin in the agrochemical composition of US'899 to afford the agrochemical product of the instant invention; furthermore, it would have been obvious to spray the resulting composition onto plant leaves, as seen in the method taught by Kwon, in order to treat the leaves with the agrochemical composition. An ordinarily skilled artisan would have been motivated to use the fungicides taught by Hao in combination with the claims of US'899 to generate the instant application's composition, which is diluted with water and sprayed onto the leaves of plants. Regarding the D90 size, the instant specification defines D90 size as the "value in the particle size distribution of a sample where 90% of the particles present in the sample are equal or below that value" (instant specification page 3 lines 9-16). Therefore, because US'899 claims the size of the particles of silicate ranges from 0.1-30 μm, this size range of the particles present completely overlaps instant claim 1 's D90 size range of 1-15 μm. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). The same obviousness rationale applies for this co-pending application, despite it not being considered "prior art." Regarding the silicate percent by weight range of the composition as recited in instant claim 5, the same logic applies. US'899 claims the particles of at least one silicate are between 2-78% by weight of the total composition, which overlaps with the instantly claimed range of 0.5-2% by weight of the composition. Therefore, a prima facie case of obviousness exists.
Response to Arguments
Applicant’s arguments with respect to claims 1, 5, 8-15, 19, 20, and 22-28 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
No claims are allowed.
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/VIJAY D PATEL/Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616