DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . 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 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.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 09/22/2025 has been entered.
Status of the Claims
The response and amendment filed 08/21/2025 is acknowledged.
Claims 46, 49-51, and 62-63 are pending.
Claims 46, 62, and 63 are independent.
Applicant's election with traverse of the species mancozeb and copper sulfate in the reply filed on 10/14/2024 is acknowledged. The elected species read on claims 46 and 49-51
Claims 62 and 63 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 10/14/2024.
Claims 46, 49, and 51 are treated on the merits in this action.
The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application. Rejections not reiterated herein have been withdrawn.
Withdrawn
The rejection of claim 49 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention has been withdrawn because of Applicant’s amendment.
The rejection of claim 51 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention has been withdrawn because of Applicant’s amendment.
The rejection of claim 49 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 has been withdrawn because of Applicant’s amendment.
The rejection of claim 51 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 has been withdrawn because of Applicant’s amendment.
Response to Arguments
Applicant's arguments filed 08/21/2025 have been fully considered but they are not persuasive.
Regarding the rejection of claims 46, and 51 under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2) as being anticipated by US Pat. No. 4,394,316 to Chao ("Chao"):
Applicants respectfully traverse. Applicant argues amended claim 46 is not anticipated by Chao because Chao fails to disclose, either expressly or inherently, a composition consisting of mancozeb and a copper fungicide selected from copper oxychloride, copper sulfate copper hydroxide, tribasic copper sulfate, or combinations thereof. Applicant argues Chao is directed to copper-modified mancozeb, where the copper fungicide is specifically copper (II) ion, typically provided as copper sulfate (see Chao, Abstract; Claims 1-3; Example 1-2).
These arguments are unpersuasive.
The claimed invention reads on a composition comprising active ingredients consisting of mancozeb and a copper fungicide wherein the copper fungicide is copper sulfate. Thus, the claimed invention reads on compositions which contain only mancozeb and copper sulfate as active ingredients. Chao teaches such compositions as set forth in the previous rejection and reiterated below. The claimed invention reads on copper-modified mancozeb made according to Chao since mancozeb and copper sulfate are the only active ingredients present in the Cho composition. The claimed invention makes no distinction over Chao since the arrangement and/or chemical nature of mancozeb and copper sulfate are not specified. Further, the disclosed combination appears to be made in a very similar way to that done in Chao. The present application teaches mancozeb and copper sulfate are combined in water and spray dried. See specification, e.g., example 4. From Chao it is noted that, mancozeb and copper (II) sulfate, within a contact time of one to two minutes with water results in a substantial amount of copper being taken up, reacted with, or complexed by mancozeb (Chao, e.g., c31-12, Example 2). Thus, it appears the manner in which Applicant made the exemplified mancozeb copper sulfate powder – spray drying the combination from water - would have necessarily resulted in contact between mancozeb and copper sulfate in the presence of water and formation of “copper modified mancozeb” as described by Chao. Indeed, based on the description in Chao, it would be surprising if Applicant’s disclosed method did not result in at least some copper modified mancozeb in the final product since the modification happens within a contact time of one to two minutes with water according to Chao. Arguments regarding teaching away have no effect over an anticipation rejection. Claim 46 clearly states copper sulfate.
Regarding the rejection of Claims 46, 49, and 51 under 35 U.S.C. 103 as being unpatentable over Chao:
Applicant argues Chao teaches the use of soluble copper (II) ion, typically as copper sulfate, to modify mancozeb, and specifically distinguishes this from the use of insoluble copper salts such as copper oxychloride, copper hydroxide, and tribasic copper sulfate. Applicant argues Chao reports that combinations of mancozeb with these insoluble copper salts are known, but that such combinations do not provide the benefits of the invention, such as reduced solubilized ETU and improved stability (see Chao, Description, col. 8). Applicant argues Chao teaches away from the use of these insoluble copper salts, stating that "none of the products obtained reduced as much solubilized ETU in the spray tank as the copper modified mancozeb of the present invention which uses substantially less but soluble copper (II) ion." Applicant argues this clear teaching away from the claimed copper fungicides is strong evidence of non-obviousness.
This argument is unpersuasive.
First, the copper sulfate mancozeb embodiment of Chao meets the claim limitations since claim 46 clearly recites copper sulfate. Further, the disclosure of Chao does not teach away from the alternative copper salts since Chao teaches they still reduced ETU in the spray tank, just not to the same degree as the copper sulfate mancozeb combination, i.e., they were somewhat inferior but still shared a desired property. Also, since the reference does not suggest these embodiments are unsuitable as fungicides, the reference does not teach away. See MPEP 2123.
Applicant argues the claimed invention provides a composition with a specific combination of actives that is not suggested or rendered obvious by Chao. Applicant argues the prior art's recognition of combinations of mancozeb with insoluble copper salts does not render the claimed invention obvious, particularly in light of Chao's negative teachings regarding such combinations. The Federal Circuit has repeatedly held that a reference that teaches away from a claimed invention is evidence of non-obviousness (see, e.g., In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)). Applicant argues Chao's teaching away is clear and direct.
This argument is unpersuasive.
The claimed invention is not limited to combinations of mancozeb with insoluble copper salts since the claimed invention recites copper sulfate consistent with the species election. Further, the argument that Chao teaches away from the claimed invention is not persuasive for the reasons enumerated above.
Rejections Addressing Applicant’s Amendment
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 46 and 51 are rejected under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2) as being anticipated by Chao, US 4394316.
Chao teaches compositions consisting of mancozeb and copper sulfate in the form of a micronized powder (Chao, e.g., c2:example 1 and c3:example 2).
Chao teaches the composition formulated as wettable granules, dry flowable formulations (Chao, e.g., c9-c10).
Chao anticipates the subject matter of instant claims 46 and 51.
Claims 46 and 51 are rejected under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2) as being anticipated by Chen, CN 1915027 A as evidenced by Bordeaux Mixture, Pest Notes 7481, University of California, 2010 (cited previously).
Chen teaches a composition comprising mancozeb and a copper fungicide, i.e., Bordeaux mixture in a ratio of 1:1, 1.6:1, 2:1, or 1:1.6. See Chen, e.g., pg. 3: section 2.1:
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The ratio of 1:1.6 and 1.6:1 is within the scope of a ratio of about 1:1.5 as claimed. The weight ratio of claim 49 is 1:1.57 :: mancozeb to copper fungicide.
The Bordeaux mixture is a copper fungicide (Chen, e.g., pg. 2, ¶ 1). The Bordeaux mixture is a copper sulfate fungicide. The reference Bordeaux Mixture is evidence for the fact that the copper fungicide of Chen (Bordeaux mixture) is a copper sulfate fungicide (Bordeaux Mixture, e.g., pg. 1, ¶ 1 and pg. 1, c3, copper sulfate).
Copper sulfate and mancozeb are the only fungicides present in the composition.
Applicable to claim 51: Chen teaches the formulation as a wettable powder which is a dry flowable mixture. See Chen, e.g., claim 3.
Chen teaches the composition is effective for downy mildew of grape and anthracnose. See Chen, e.g., pg. 2:
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Chen anticipates the subject matter of instant claims 46 and 51.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 46, 49, and 51 are rejected under 35 U.S.C. 103 as being unpatentable over Chao, US 4394316.
Chao clearly teaches a composition according to claim 46 as enumerated above.
Chao does not expressly teach compositions comprising about 30 wt% mancozeb and about 47.15 wt% copper fungicide, based on the total weight of the composition.
However, Chao teaches the amount of mancozeb in the composition may vary over the range of from 10-90% and the amount of copper in the composition may vary over the range of form 10-90% (Chao, e.g., c9:table IX). The amount of mancozeb, i.e., about 30% and the amount of copper, i.e., 47.15% is within the ranges suggested by Chao for the composition. In the case 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). MPEP 2144.05. That is, Chao teaches the ratio of mancozeb to copper may vary over the range of from 9:1 to 1:9 (Chao, e.g., c9:Table IX). Further, Chao teaches the composition may be formulated, e.g., as granules or powders (Chao, e.g., c9:35-48). Further, Chao teaches the mancozeb/copper composition is present in formulations in amounts ranging from 20-80%. The total amount in claim 49, i.e., about 30% + about 47.15% is 77.15% mancozeb/copper composition and this amount is within the range suggested for formulations containing the mancozeb/copper composition in Chao. In the case 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). MPEP 2144.05.
It would have been obvious before the effective filing date of the presently claimed invention to formulate a composition consisting of mancozeb and copper sulfate as known from Chao in a formulation as, e.g., granules or a flowable powder, where the composition consisting of mancozeb and copper sulfate is present in the composition in an amount ranging from 20-80% by weight with a reasonable expectation of success. The skilled artisan would have been motivated to optimize the amount of the mancozeb/copper composition within the range suggested by Chao for effective treatment of loci such as sees, soil or foliage with a reasonable expectation of success.
Accordingly, the subject matter of claims 46, 49, and 51 would have been prima facie obvious before the effective filing date of the presently claimed invention, absent evidence to the contrary.
Claims 46, 49, and 51 are rejected under 35 U.S.C. 103 as being unpatentable over Chen, CN 1915027 A as evidenced by Bordeaux Mixture, Pest Notes 7481, University of California, 2010 (cited previously).
The teachings of Chen as evidenced by Bordeaux Mixture enumerated above apply here. Chen teaches a composition according to claim 46, but does not expressly teach wherein the composition comprises about 30% by weight of mancozeb and 47.15% by weight of the copper fungicide based on the total weight of the composition.
However, Chen suggests the mass of copper sulfate in the composition may range from 1-40% and the mass of mancozeb may range from 1-40% (Chen, e.g., claim 1). The amount of mancozeb in the claimed composition is within the range suggested by Chen. The amount of copper fungicide in the claimed composition is close to the range suggested by Chen.
In the case 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). MPEP 2144.05.
Similarly, a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985). MPEP 2144.05.
It would have been obvious before the effective filing date of the presently claimed invention to optimize the amount of mancozeb and copper sulfate fungicide in a composition suggested by Chen to arrive at the presently claimed subject matter with a reasonable expectation of success. Chen suggests the amount of mancozeb fungicide and the amount of copper sulfate fungicide were result effective parameters the skilled artisan would have optimized for a desired fungicidal effect with a reasonable expectation of success. Further, using the general conditions suggested by Chen, the skilled artisan would have been motivated to optimize the amount of each active fungicide with a reasonable expectation of success because Chen suggests workable ranges as a starting point for optimizing, and suggests the amount of each ingredient may vary over a significant range. The skilled artisan would have expected similar properties because copper sulfate was recognized as a fungicide. Thus, the skilled artisan would have expected compositions having copper sulfate fungicide in an amount of 47.15% to have fungicidal properties similar to those with copper sulfate fungicide in an amount ranging from 1-40%.
Accordingly, the subject matter of claims 46, 49, and 51 would have been prima facie obvious before the effective filing date of the presently claimed invention, absent evidence to the contrary.
Conclusion
No claim is allowed.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WILLIAM A CRAIGO whose telephone number is (571)270-1347. The examiner can normally be reached on Monday - Friday, 9am - 6pm, PDT.
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/WILLIAM CRAIGO/Examiner, Art Unit 1615