-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 .
Applicant’s response dated February 2, 2026 is acknowledged.
Priority
This application is a 371 of PCT/JP2020/028744 filed on 07/27/2020, and claims foreign
priority in Japanese application JP2019- 143474 filed on 08/05/2019.
Claim Status
Claims 1, 3, 7-9, 11, 13, and 14 are pending and examined. Claims 2, 4-6, 10, and 12 were cancelled. Claims 13 and 14 were newly added and read on the examined invention. No claims were amended.
Maintained and New Claim Rejections - 35 USC § 103
Necessitated by Amendment
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.
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 1, 3, 7-9, 11, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over
Frisch (US 2005/0266998 Al Published December 1, 2005) and Ikeda (EP I 944 330 Al
Published July 16, 2008).
The claims encompass an agricultural formulation comprising components a, b, c, and d,
wherein components a, b, and c and dissolved in component d.
The teachings of Frisch are related to liquid aqueous formulations of water-soluble crop
protectant ingredients which comprise:
(a) one or more water-soluble active ingredients,
(b) if desired, one or more water-insoluble active ingredients,
(c) if desired, polar organic solvents
(d) anionic surfactants,
(e) if desired, nonionic, cationic, and/or zwitterionic surfactants,
(f) silicone based defoamers from the group of linear polydimethylsiloxanes,
(g) if desired, other customary formulation assistants, and
(h) water.
The composition is suitable as low-foam formulation for application in crop protection
(Abstract). Paragraphs 0041-0051 teach suitable organic solvents. In the case of single-phase
aqueous-organic solutions the wholly or largely water-miscible solvents or solvent mixtures are
appropriate (paragraph 0052). Examples of customary formulation assistants (g) are inert
materials, such as stickers, wetters, dispersants, emulsifiers, penetrants, preservatives, and frost
protectants, fillers, carriers and colorants, evaporation inhibitors and pH modifiers (buffers, acids
and bases) or viscosity modifiers (e.g., thickeners) (paragraph 0085). With the aid of mixtures of
components, it is possible to prepare concentrated low-foam liquid aqueous preparations of
saltlike active crop protectant ingredients, which comprise
(a) 1-40 wt.% of one or more water- soluble active ingredients,
(b) 0-40 wt. % of one or more water-insoluble active ingredients,
(c) 0-50 wt. % of polar organic solvents,
(d) 1-80 wt. % of anionic surfactants,
(e) 0-20 wt. % of nonionic, cationic, and/or zwitterionic surfactants,
(f) 0.02-10 wt.% of silicone based defoamers from the group of linear polydimethylsiloxanes,
(g) 0-30 wt. % of other customary formulation assistants, and
(h) 0.1-90 wt.% of water (paragraphs 0087-0095).
By way of example the formulations are distinguished by a low tendency to foam when
diluted with water, as for example when preparing tank mixes or when the formulations are
applied by spraying (paragraph 0129).
Frisch does not teach the silicone compound c of formula (II).
The teachings of lkeda are related to a low-foaming silicone composition (Abstract). The
low-foaming silicone composition comprises components A, B, and C in ranges of
concentrations, where component C has the formula
PNG
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124
380
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wherein each Rl3 and RI5 independently represent unsubstituted monovalent hydrocarbon group
of 1-18 carbon atoms, R14 represents a chemical structure of formula
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70
302
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Greyscale
wherein each R16 represents an unsubstituted bivalent hydrocarbon group of 2-8 carbon atoms, r
is integer of 0-6, and s is an integer of 0-2 (paragraph 0010). The composition exhibits powerful
surfactant action and low foaming properties, and is consequently useful as a spreading agent
such as an agrichemical spreading agent (paragraph 0015). Specific example of component C
includes a compound
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121
325
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(paragraph 0046), which is termed CI (paragraph 0057).
The teachings of Frisch and Ikeda are related to compositions suitable for use in
agrochemical compositions and it would have been obvious to have combined their teachings
because they are in the same field of endeavor.
It would have been prima facie obvious to a person of ordinary skill in the art before the
effective filing date of the claimed invention to have formed a single phase concentrated solution
comprising 1-40 wt. % of one or more water-soluble active ingredients, 0-50 wt. % of polar
organic solvents, 1-80 wt. % of anionic surfactants, 0-20 wt. % of nonionic, cationic, and/or
zwitterionic surfactants, 0.02-10 wt.% of silicone based defoamers from the group of linear
polydimethylsiloxanes, 0-30 wt. % of other customary formulation assistants, and 0.1-90 wt. %
of water, with a reasonable expectation of success because Frisch teaches a single phase
concentrated solution comprising said components. According to the teachings of Frisch, the
concentrated solution is intended to be diluted with water prior to use. It would have been
obvious to have formed the concentrated solution with 0.1 wt.% water because 0.1 wt.% is the
lowest suitable concentration of water in the composition. Similarly, it would have been obvious
to have used the organic solvent in a concentration of up to 50 wt. % because 50 wt. % is the
highest suitable concentration of organic solvent in the composition. It would have been obvious
to have selected N-methylpyrrolidone as the polar organic solvent because Frisch teaches N-methylpyrrolidone as a suitable polar organic solvent (paragraph 0053).
It would have been obvious to have modified Frisch' s composition by adding Ikeda' s
composition, with a reasonable expectation of success because Frisch teaches that the
composition optionally comprises nonionic surfactants in a concentration of up to 20 wt. % and
optionally comprises customary formulation assistants in a concentration of up to 30 wt.%; and
Ikeda' s composition is described as a powerful surfactant and a spreader suitable for use in
agricultural compositions. It is apparent from chemical structures of components A, B, and C
that the components are nonionic. It would have been obvious to have formed Ikeda' s
composition with compound C 1 because Ikeda teaches compound C 1 as suitable for making the
composition. The selection of known material such as Ikeda' s composition based on its
suitability for its intended purpose such as a surfactant and a spreader supports obviousness. One
of skill in the art would have been motivated to use Ikeda' s composition as a spreader and a
surfactant in Frisch's composition because Ikeda's composition is known for its low-foaming
properties and the purpose of Frisch is to form a composition with low foaming properties.
It would have been obvious to have formed Frisch's modified composition by having the
active ingredient, the surfactants, and Ikeda' s composition dissolved in the polar organic solvent
N-methylpyrrolidone because Frisch requires the composition to be a single-phase solution.
Frisch' s composition modified by Ikeda is a single-phase concentrated solution comprising 1-40
wt.% of one or more water-soluble active ingredients, up to 50 wt.% of polar organic solvents
(N-methylpyrrolidone), 1-80 wt. % of anionic surfactants, 0.02-10 wt. % of silicone based
defoamers, up to 30 wt.% of lkeda's composition (other customary formulation assistants and
surfactant), and 0.1 wt.% of water.
N-methylpyrrolidone is an amide and a pyrrolidone organic solvent.
It would have been obvious to have selected anionic derivatives of copolymers composed
of EO, PO, and/or BO units in the form of ether carboxylates, sulfonates, sulphates, and
phosphates, with a reasonable expectation of success because Frisch teaches that the anionic
surfactant is selected from anionic derivatives of copolymers composed of EO, PO and/or BO
units with a molecular weight of 400 to I 08 in the form of ether carboxylates, sulfonates, sulfates and phosphates and their inorganic (e.g., alkali metal and alkaline earth metal) and organic salts (e.g., those based on amine or alkanolamine) (paragraph 0056).
The claimed polyoxyalkylene surfactant and a sulfonate surfactant are obvious over this
teaching.
Ikeda's compound Cl is the same as claimed compound of formula II.
Frisch does not teach transmittance of light of the single-phase solution. The claim
requires at least 94% transmittance to light at a wavelength of 660 nm. It would have been
reasonable to expect the prior art genus of solutions to encompass a solution having the claimed
transmittance when measured at 660 nm because the solutions are described as a single phase
and contain the same elements as claimed in a range of concentrations. The Office is not
equipped to test prior art compositions in order to determine whether or not they have the same
properties as claimed compositions.
Regarding the limitation that requires a weight ratio of the agriculturally active ingredient
(a) to the silicone compound (c), it would have been obvious to have used Ikeda's composition in
example I (Table I in paragraph 0058) in Frisch's composition because Ikeda teaches example I
composition as a suitable composition for making a low foaming composition. Composition in
example I contains 90 wt. % of component Al, 5 wt. % of component B 1, and 5 wt. % of
component CI (relevant to claimed silicon compound (c) of formula I).
Frisch's composition contains 1-40 wt.% of one or more water-soluble active ingredients
and up to 30 wt.% of lkeda's composition comprising Al, Bl, and Cl. A 100 g composition
comprising 40g active and 30g of lkeda's composition is used for calculation purpose. Said
composition would contain 27g of component Al, 1.5g component B1, and 1.5g of component
Cl. The weight ratio of (a) to (c) would be 40:1.5, which is encompassed by the claimed range.
Similarly, compositions having 40 wt. % of active and Ikeda' s composition in a range of
concentrations below 30 wt.% would also contain (a):(c) in a range of weight ratios that
overlaps with the claimed range. Furthermore, when active is used in a concentration of less than
40 wt.% and Ikeda's composition in a range of concentrations less than 30 wt.%, the range of
weight ratios of the two would overlap with the claimed range. Thus, the claimed range of
weight ratios is obvious.
The composition contains l-40g of the active, 1-80 g of anionic surfactants, and 0-20 g of
nonionic, cationic, and/or zwitterionic surfactants. When active agent is present in an amount of
40 g, the ratio of active to surfactant ranges from 40:1 to 40:100, which is equivalent to 40:1 to
1:2.5, which overlaps with the claimed range of weight ratios. When active agent is present in an
amount of lg, the ratio of active to surfactant ranges from 1:1 to 1:100, which also overlaps with
the claimed range of weight ratios.
The composition contains 1-80 g of anionic surfactants, and 0-20 g of nonionic, cationic,
and/or zwitterionic surfactants, and 0-50g of the organic solvent. When the composition contains
lg of surfactant and 50g of organic solvent, the ratio of surfactant to solvent would be I :50. The
organic solvent amount ranges from 0 to 50g, therefore all of the ratios in between 0 and 50
relative to lg of solvent would have provided a range of weight ratios that overlaps with the
claimed range.
A 100 g composition comprising 50g organic solvent and 30g of lkeda's composition
would contain 27g of component Al, 1.5g component B 1, and 1.5g of component Cl. The weight ratio of component Cl (c) to organic solvent (d) would be 1.5:50, which is encompassed by the claimed range. Similarly, compositions having 40 wt. % of active and Ikeda' s composition in a range of below 30 wt.% would also contain (c):(d) in a range of weight ratios that overlaps with the claimed range. Furthermore, when organic solvent is used in a concentration of less than 50 wt. % and Ikeda's composition in a range of concentrations less than 30 wt.%, the range of weight ratios of (c):(d) would overlap with the claimed range. Thus, the claimed range of weight ratios is obvious.
The claimed ranges of weight ratios are obvious because they overlap with the prior art
ranges of weight ratios. The specification was reviewed and there is no evidence that the claimed
ranges of weight ratios are critical.
Regarding claim 3, Frisch teaches anionic surfactants in the composition.
Regarding claim 7, Frisch teaches polar organic solvents and specifically Nmethylpyrrolidone.
Regarding claim 8, the composition described above is a soluble concentrate.
Regarding claims 9 and 11, it would have been prima facie obvious to have formed the
composition of Frisch modified by Ikeda by mixing the components, with a reasonable
expectation of success because Frisch teaches preparing the liquid formulation by methods which
are customary in principle, i.e. by mixing components with stirring or shaking or by means of
static mixing methods (paragraph 0112). Frisch does not limit the order in which the components
are combined prior to mixing, and it would have been obvious to have combined the components
in any order. The claimed order of combining components is obvious over Frisch because it
would have been obvious to have added Ikeda's composition, which contains Cl, to Frisch's
composition which is a mixture comprising the active agent, the surfactant, and the organic
solvent. It would have been obvious to have dissolved Ikeda' s composition in the mixture
because the purpose of Frisch is to form a single-phase solution concentrate. Frisch's modified
method of making the composition would have accomplished suppressing foaming of a water
dilution of an agricultural formulation comprising elements a, b, c, and d because Frisch' s
modified method teaches the same steps and same components as claimed.
Combining prior art elements according to known methods to obtain predictable results
supports obviousness, and the selection of a known material based on its suitability for its
intended purpose supports obviousness. The present application was reviewed and there is no
evidence of criticality and unexpected results.
Regarding claim 14, the claim describes composition properties when placed under certain conditions. The prior art composition meets all of the structural limitations of the claimed composition and, absent evidence of unexpected results, it would have been reasonable to expect the prior art composition to have the same properties as claimed because a chemical composition and its properties are inseparable.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Frisch (US 2005/0266998 Al Published December 1, 2005) and Ikeda (EP I 944 330 Al Published July 16, 2008) as applied to claims 1, 3, 7-9, 11, and 14 above, and further in view of Ishihara (US 2011/0028528 A1 Published February 3, 2011).
Claim 13 further defines the agriculturally active ingredient (a).
The teachings of Frisch and Ikeda are relied upon as summarized above. They do not teach the limitations of claim 13.
The teachings of Ishihara are related to pesticidal aqueous suspension compositions containing (a) an active ingredient compound of (a) a sparingly water-soluble pesticide, (b) an organosilicone surface active agent, (c) a viscosity-reducing agent, (d) an antifoaming agent, (e) a pH adjustor and (f) a dispersant, which is suppressed in increasing in the viscosity, is easy to measure, hardly generates foams at the time of dilution with water and is easy to prepare a spray solution (Abstract). The sparingly water-soluble pesticide includes chlorfluazuron (paragraph 0010).
The teachings of Ishihara and Frisch modified with Ikeda are related to agrochemical compositions comprising a water insoluble active ingredient, and it would have been obvious to have combined their teachings because they are in the same field of endeavor.
It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to have formed the composition of Fisch with a water insoluble active ingredient because Fisch teaches forming the composition with one or more water insoluble active ingredients (Abstract). It would have been obvious to have selected chlorfluazuron because chlorfluazuron was known as a sparingly water soluble agrochemical active ingredient. The selection of a known material based on its suitability for its intended purpose supports obviousness.
Response to Arguments
Applicant's arguments submitted in the remarks dated February 2, 2026, were fully
considered but are not persuasive for the following reasons.
Applicant's statement that applicant maintains that the claims are patentable at least for
the reasons of record, is not persuasive for reasons of record.
Applicant submitted a declaration by Takao Inagaki (the “2nd Inagaki Declaration) to provide evidence of unexpected results.
The declaration was reviewed, however it is not sufficient to obviate the grounds of rejection with unexpected results because it does not meet the requirements set forth in MPEP 716.02.
The applicant did not establish that the results are in fact unexpected. The applicant tested Frisch’s composition having the defoamer replaced with Ikeda’s compound and compared the amount of foam (30 mL) formed to amount of foam formed Example 1-1 in Table 1 (2 mL) of the specification and concluded that 30 mL is unacceptably high relative to 2 mL of foam observed in Example 1-1 and that 2 mL is unexpected. It is not clear why applicant considers amount of foam observed in Example 1-1 as unexpected compared to amount of foam formed in Frisch’s modified composition because none of the references of record teach how much foam is expected to form. Frisch’s modified composition and Example 1-1 composition are structurally different and it would have been reasonable to expect the two compositions to have different properties, including the amount of foam produced. Any differences between the claimed invention and the prior art may be expected to result in some differences in properties. The issue is weather the properties differ to such an extent that the difference is really unexpected. The evidence relied upon should establish that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance.
The claims are not commensurate in scope with the composition of Example 1-1, which showed the asserted unexpectedly low amount of foam. The tested compositions contain specific components a-d in specific concentrations, while independent claims broadly recite an agriculturally active ingredient, a surfactant, and an organic solvent selected from an amide, a sulfoxide, a ketone, a lactone, a pyrrolidone, an alcohol, an ether, and an ester, without limiting concentrations of these components. The example recites specific amounts of each component, whereas the claims recite ranges of weight ratios of a to b, b to d, and c to d. The applicant did not show that the asserted unexpected property (2 mL of foam) would have been expected to occur over the entire breath of the claims.
Conclusion
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.
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/ALMA PIPIC/Primary Examiner, Art Unit 1617