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 .
Status of Application
Applicants' arguments/remarks filed 01/22/2026 are acknowledged. Claims 1 and 9 are amended. Claims 1-3 and 6-11 are examined on the merits within and are currently pending.
Maintained Rejections
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.
Claims 1-3 and 6-11 are rejected under 35 U.S.C. 103 as being unpatentable over Aubert et al. (US 20120021032 A1) in view of Pant et al. (Pant et al., Insecticidal activity of eucalyptus oil nanoemulsion with karanja and jatropha aqueous filtrates. International Biodeterioration & Biodegradation 91, 119-127, 2014).
Claims 1-3, 9 and 10, Aubert et al. teach method (0041) pesticidal treatment of soils or substrates, preferably by fumigation, characterized in that there is applied to the soil or in the substrate. (Claim 1). The aqueous emulsion and microemulsion formulations include one or more surfactants to the compound of formula (I), R-S(O)n-Sx-R', a fumigant and water. (0011).
in which R' represents an alkenyl or alkyl radical or, only if n=x=0, a hydrogen or alkali-metal atom. The sulphur compounds (in particular dimethyldisulphide) can be applied according to standard soil treatment methods (by injection, spraying, dripping, sprinkling) (Abs). Composition C (including dimethyldisulphide and surfactants an alkylbenzene sulfonate and/or an alkoxylated alkylphenol) in formulations A or B comprising at least 90% by weight, of at least one fumigant compound dimethyl disulfide, relative to the total weight of the composition C and between 1% and 10% by weight of at least one surfactant an alkylbenzene sulfonate and/or an alkoxylated alkylphenol, relative to the total weight of the composition C.
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Aubert et al. do not teach 0.1% - 0.40% by volume of composition C in formulation F, which comprise water.
Pant et al. teach fumigant eucalyptus oil with or without karanja and jatropha, which to enhance the activity of eucalyptus oil as a pesticide by making a nanoemulsion. The eucalyptus oil nanoemulsion containing karanja and jatropha aqueous filtrate with concentrations of 300 -1500 ppm of Eucalyptus oil (0.03 -0.15% v/v approximately) gave 88-100% mortality rates against T. castaneum adults. (Abs).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare an emulsion / microemulsion pesticide formulation for pesticide treatment by fumigation of soils and/or substrate, including a composition C with at least 80 % of one or more fumigant with up to 20 % one or more surfactants, taught by Aubert et al., and with 0.03-1.5% v/v of composition C relative to total volume of water, since they have proven it is suitable to do so.
With regard to Claim 6, Aubert et al. teach: TOXIMUL® DM-83, TOXIMUL® DH-68 are Stepan’s Calcium Dodecylbenzene Sulfonates (CaDDBS). TOXIMUL® DM-83, TOXIMUL® DH-68 are Stepan’s Calcium Dodecylbenzene Sulfonates (CaDDBS).pdf.
With regard to Claim 7, Aubert et al. teach the products with pesticidal activity which are particularly suitable for mixing with the compounds of formula (I) according to the invention are pure products such as 1,3- dichloropropene or chloropicrin (Cl3C-NO2 ) which are themselves used as fumigants, aqueous solutions of products such as Metam-sodium (CH3-NH-CS2 -Na+) or sodium tetrathiocarbonate (Na2CS4 ) which are also used as fumigants, or any other product having an activity which is complementary to or synergistic with the compounds of formula (I), such as MITC (CH3-NCS) or Dazomet (generator Of MITC). (0021).
With regard to Claims 8 and 11, Aubert et al. teach composition C, as described in claim 1 above, which can be applied to soil with treatment method like dripping. (Abs). Treatment: DMDS is applied in the form of formulation A with the aid of a jet sprayer, (0041), a dosing device. The compounds of formula (I) and the compositions containing them may be applied according to any of the conventional methods for introducing pesticides into the soil, such as, for example, injection by coulters which makes it possible to introduce the product deep, spraying on the soil, drip by a conventional irrigation system or "sprinkler" type sprinkling. After introducing the product into the soil and optionally spreading (for example using a rotary spade in the case of injection into the soil), the surface of the soil may be optionally closed, either by capping the surface by means of a smoothing roller, or with a plastic film. (0022). Or drip irrigation kits can be purchase from the Home Depot or any similar store.
Response to Arguments
Rejection under 35 U.S.C. 103
Applicant argues that Examiner's use of Pant to teach the claim 1 requirement of a formulation F comprising water and between 0.10% and 0.40% by volume of a composition C, relative to the total volume of water in the formulation F that the passage in Pant cited by the Examiner (i.e., concentrations of 300-1500 ppm of Eucalyptus oil) which the Examiner states is equivalent to approximately 0.03-1.5% v/v, relates to a desirable mortality rate against the red flour beetle T. castaneum, while Pant states on page 120, second column, that the "highly volatile nature of eucalyptus oil" impacted the nanoemulsion system that was prepared, which would indicate that a concentration of a component necessary to achieve a stable emulsion is highly dependent on the physicochemical properties of component. As a result, a person of ordinary skill in the art would not have a reasonable expectation of success that the 0.03-0.15% v/v concentration of eucalyptus oil in the Pant nanoemulsion could be applied to other chemical compounds regardless of the physicochemical properties of the compounds.
Applicant's arguments have been fully considered but they are not persuasive because Pant teaches that a concentration of a component necessary to achieve a stable emulsion is highly dependent on the physicochemical properties of component, which does not mean that the 0.03-0.15% v/v concentration of eucalyptus oil in the nanoemulsion is not effective. And one with skill in the art is known for solving problem, is represented with design choices, may modify the teachings of the prior arts until they can achieve better outcome results.
Applicant argues that Page 120, second column, of Pant also states that when determining the concentration of pesticide that is required for efficacy, a "pesticide with a lower LC50 is more toxic than a pesticide with a higher number because it takes less of the pesticide to kill half of the test animals." This statement also supports the expectation of the skilled person that the effective concentration of one compound cannot be presumed to be the effective concentration of different compounds with any reasonable expectation of success.
Applicant's arguments have been fully considered but they are not persuasive because again Pant’s teachings remind one with skill in the art the awareness of different active compound they need to use and when one with skill in the art is represented with design choices, they may modify the teachings of the prior arts until they can achieve better outcome results.
Applicant argues that page 120, second column, of Pant states that "this paper focuses on enhancing the bioefficacy of the highly volatile essential for a long period of time by decreasing its volatility and also increasing its effectiveness using karanja and jatropha aqueous filtrate in the eucalyptus oil nanoemulsion formulation." This statement makes it clear that the nanoemulsion formulation described in Pant is a highly unique formulation that addresses account multiple criteria to accommodate the high volatility of eucalyptus oil. According, a skilled person would have no expectation that applying the concentration of the eucalyptus oil in the devised Pant nanoemulsion to a completely different chemical compound would have any reasonable expectation of success.
Applicant's arguments have been fully considered but they are not persuasive because one with ordinary skill in the art can learn from and select specific parts of several prior arts’ teachings before the effective filing date of the invention to achieve better outcome results even though some prior arts may teach more and may teach different things.
Applicant argues that Table 4 on page 122 of Pant exemplifies the complexity of analyzing the effect of karanja and jatropha on different properties viz. droplet size, polydispersity index, percentage mortality and LCS0 value when generating the nanoemulsions described in Pant. A person of ordinary skill in the art would have no rationale with a reasonable expectation of success for applying a concentration of eucalyptus oil present in a constructed nanoemulsion described in Pant to the teaching of Aubert with the result that claim 1 of the present application would be achieved.
Applicant's arguments have been fully considered but they are not persuasive because Aubert teaches dimethyldisulphide (DMDS) and surfactants an alkylbenzene sulfonate and/or an alkoxylated alkylphenol and percentages of DMDS in the composition C. Pant teaches the dilution of composition C with water. One with ordinary skill in the art can learn from and select specific parts of several prior arts’ teachings before the effective filing date of the invention to achieve better outcome results even though some prior arts may teach more and may teach different things. One with skill in the art would be able to find out what percentage of composition C to be diluted to be effective with the composition taught by Aubert and with percentage range taught by Pant.
Applicant argues that At pages 6-7 of the Office Action, the Examiner appears to rely on Knowles for teaching that the formulation F comprising the active ingredient and the surfactants with percentages that are within the range recited in claim 1 of the present application. The passages in Knowles identified by the Examiner does not remedy the above discussed deficiencies present in the combination of Aubert and Pant.
Applicant's arguments have been fully considered but they are not persuasive because there is no deficiencies in the combination of Aubert and Pant, so Knowles does not need to remedy Aubert and Pant’s teachings.
Conclusion
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 extension fee 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 date of this final action.
Correspondence
No claim is allowed
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NGOC-ANH THI NGUYEN whose telephone number is (571)270-0867. The examiner can normally be reached Monday - Friday 8:00 am.
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/NGOC-ANH THI NGUYEN/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
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