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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 October 2, 2025 has been entered.
Claims 1-3, 8-11, 13-17, and 19-21 are pending in the application. Claims 1, 2, 3, 10, 11, 13, 16, and 17 have been amended. Claims 1-3, 8-11, 13-17, and 19-21 will be examined.
Status of the Claims
The rejection of claim 2 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or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention is withdrawn due to Applicant’s amendment to the claim.
The rejection of claims 1-3, 7-11, 13-17 and 19-21 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 11,330,822 (‘822) in view of Chen (US 2006/0166898) and NACHURS® 3-18-18 is withdrawn due to the filing of an approved Terminal Disclaimer.
The rejection of claims 1-3, 8-11, 13-17, and 19-21 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 11,330,822 (‘822) in view of Chen (US 2006/0166898) and NACHURS® 3-18-18 is maintained.
Rejections not reiterated from the previous Office Action are hereby withdrawn. The following rejections are reiterated. They constitute the complete set of rejections presently being applied to the instant application.
Terminal Disclaimer
The terminal disclaimer filed on October 2, 2025 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of U.S. Patent No. 11,330,822 has been reviewed and is accepted. The terminal disclaimer has been recorded.
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.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 1-3, 8-11,13-17, and 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over Chen (US 2006/0166898) and NACHURS® 3-18-18 in view of Torrent-Parker et al. (US 2008/0318881).
Applicant’s invention
Applicant claims an agricultural composition comprising: clothianidin; from about 3% to about 8% w/w alkyl polyglycoside; attapulgite; and from about 15% to about 30% w/w glycerol, wherein w/w denotes weight by total weight of the formulation.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Regarding claim 1, Chen teaches Composition 72 which comprises Clothianidin; 0.50% Morwet D425 (sodium salt of alkylnaphthalenesulfonate formaldehyde polymer, at least one dispersant); 0.40% aluminum oxide (claims 1 and 6, about 0.1% to about 5% w/w aluminum oxide); 8.00% glycerin (claim 1, glycerol); and Attagel 50 (attapulgite) (page 18, Table 23). Chen teaches in other formulations in Table 23 glycerin is 16% of the composition.
Regarding claims 8-10, Chen teaches Composition 72 further comprises Borresperse (claim 8, an additional dispersant); Hi Sil 233 (claim 8, additional thickening agent); Antifoam 8830FG (claim 8, defoamer); and 0.1% Proxel GXL (claims 8, 9, and 10, preservative, 0.1% 1, 2-benzisothiazolin-3-one).
Regarding claims 1 and 11, Chen teaches Composition 77 which comprises 23.30 % Clothianidin (claims 1 and 3, about 10% to about 30% w/w clothianidin); 0.40% Morwet D425; 0.35% Attagel 50 (claims 1 and 11, attapulgite, 0.1% to about 5% w/w); 10.00% glycerin (claim 1, glycerol).
Regarding claims 8-10, Chen teaches Composition 77 further comprises Borresperse (claim 8, an additional dispersant); and Hi Sil 233 (claims 8 and 9, additional thickening agents, silicone emulsion); Antifoam 8830FG (claim 8, defoamer); and 0.1% Proxel GXL (claims 8, 9, and 10, preservative, 0.1% 1, 2-benzisothiazolin-3-one).
Chen teaches fertilizers are compatible with the composition of the present invention are generally liquid fertilizer compositions for any available use. Such fertilizers are generally measured by a nitrogen-phosphorous-potassium index providing the amounts of each ingredient as a weight-weight percentage of each major component (page 6, paragraph 57).
Regarding claims 13, 14, and 15, Chen teaches the insecticides and fungicides encompass not only CNI compounds but a wide variety of other chemistries, yet the resultant suspensions surprisingly showed the same pattern of stability and induced shear thinning (Table 23). All samples showed the same fertilizer compatibility (Table 24).
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(page 18, paragraph 130).
Regarding claim 13, composition 72 comprises Clothianidin; 0.50% Morwet D425 Attagel 50 (attapulgite); 8.00% glycerin and 3-18-18 fertilizer (claim 13, liquid fertilizer).
Regarding claims 14, 15 and 16, Composition 72 further teaches Borresperse (claim 14, an additional dispersant); Hi Sil 233 (claim 14, additional thickening agent); Antifoam 8830FG (claim 14, defoamer); and 0.1% Proxel GXL (claims 15 and 16, preservative, 0.1% 1, 2-benzisothiazolin-3-one).
Regarding claim 19, the fertilizer added to the compositions in Table 23, including compositions 72 and 77 is 3-18-18 fertilizer. As evidenced by NACHURS® 3-18-18, NACHURS liquid fertilizer is manufactured by utilizing quality raw materials including ammonium hydroxide, urea, phosphoric acid and potassium hydroxide to materials used to formulate NACHURS 3-18-18 liquid fertilizer (pages 1-2) (claim 19, micronutrient nitrogen, phosphorus, potassium).
Regarding claim 21, Chen teaches in claims 32 and 33, page 23, a method of controlling insects comprising applying a composition according to claim 3, to locus where insects are or are expected. The method according to claim 32, wherein the composition is admixed with a liquid fertilizer composition before application to the locus.
Chen teaches nonionic surfactants that are used in the composition include alkyl polyglycosides (page 3, paragraph 38).
Difference between the prior art and the claims
(MPEP 2141.02)
Chen does not specifically disclose an example wherein an alkyl polyglycoside is present in the composition or the concentration, the limitations of claim 2, wherein clothianidin and the inorganic compound are dispersed in the composition and glycerol are dissolved in the composition, or attapulgite is present in the amount of 1% to about 10% w/w, as claimed in claim 13. It is for this reason Torrent-Parker is added as a secondary reference.
Torrent-Parker et al. teach a fast-drying liquid composition comprising at least one fungicide and at least one insecticide (Abstract).
Regarding claim 1, Torrent-Parker et al. teach the composition comprises in addition to the one fungicide and at least one insecticide a blend of the following components, by weight: a. about 0.05-20% at least one wetting agent; b. about 0.05-10% at least one dispersing agent; c. about 0.05-5% at least one drying agent; d. about 0.01-20% at least one suberization agent; and, optionally e. about 0-20% antifreeze and optionally f. about 0-20% solvent (page 2, paragraphs 15-22).
Regarding claim 1, Torrent-Parker et al. teach insecticides include clothianidin (page 3, paragraph 38; page 9, claim 7). Preferably, insecticides are present in amounts ranging from about 20% to about 45% by weight; more preferably, in amounts from about 25% to about 30% by weight (page 3, paragraph 43).
Regarding claim 1, Torrent-Parker et al. teach wetting agents useful in the fast-drying liquid composition comprise nonionic surfactants, including C8-C22 alkyl polyglycosides (page 3, paragraph 46).
Regarding claim 1, Torrent-Parker et al. teach drying agents include silicon dioxide and aluminum oxide (page 3, paragraph 49).
Regarding claim 1, Torrent-Parker et al. teach the composition further comprise formulation agents known in the art of pesticides, antifreeze agents (such as, but not limited to glycerin), buffering agents (such as, but not limited to phosphoric acid), biocides (such as, but not limited to 1,2-benzisothiazolin-3-one), and antifoaming agents (such as, but not limited to those based on silicone, particularly polydimethylsiloxane). Such additives are commercially available and known in the art (page 4, paragraph 51).
Regarding claims 1, 7, 8, 9, 10, 16, and 17, Torrent-Parker et al. teach in Example 1 a formulation comprising: Naphthalenesulfonic acid Na salt, 1.3 wt. % (sodium alkyl naphthalene sulfonate condensate-2% w/w); Acrylic graft copolymer in water and propyleneglycol 2 wt.% (acrylic graft copolymer-2 wt.%); Polydimethylsiloxane 0.1 wt.% (silicon emulsion, antifoaming agent-0.1% w/w); Propane-1,2,3-triol (glycerine) 5 wt.% (glycerol, 5% w/w); Phosphoric acid (85% solution) 0.05-0.13 wt.% (phosphoric acid, 0.05-0.1% w/w); Silicon dioxide 0.4 wt.% (inorganic compound, 0.4% w/w); 1,2-benziosthiazolin-3-one 0.4 wt.% (1,2-benzisothiazolin-3-one, 0.4 w/w%) (page 5, paragraph 84).
Torrent-Parker et al. teach compositions contain and/or may be applied together with fertilizers or micronutrients (page 4, paragraph 65).
Torrent-Parker et al. teach the liquid compositions are useful in a method for preventing pest infestations in useful crops comprising treating plant propagation material, including seed, with a pesticidally effective amount of the fast-drying liquid compositions (page 4, paragraph 66).
Regarding claims 20 and 21, Torrent-Parker et al. teach a method for preventing infestation in useful crops comprising treating the plant propagation material of a useful crop with a pesticidally effective amount of a composition according to claim 1, which comprises a. about 0.05-20% at least one wetting agent; b. about 0.05-10% at least one dispersing agent; c. about 0.05-5% at least one drying agent; d. about 0.01-20% at least one suberization agent; and, optionally e. about 0-20% antifreeze and optionally f. about 0-20% solvent (page 9, claims 1 and 30).
Finding of obviousness/Rationale and Motivation
(MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine the teachings of Chen and Torrent-Parker et al. and use an alkyl polyglycoside in the composition. Chen teaches compositions comprising Clothianidin; 0.50% Morwet D425, sodium salt of alkylnaphthalenesulfonate formaldehyde polymer, Attagel 50 (attapulgite), and glycerine. Chen teaches that a typical nonionic surfactant used in the formulation is alkyl polyglycoside. In addition, Torrent-Parker et al. teach wetting agents useful in the fast-drying liquid composition comprise nonionic surfactants, C8-C22 alkyl polyglycosides. Because Chen and Torrent-Parker et al. teach the use of alkyl polyglycoside surfactants in the similar compositions, one of ordinary skill in the art would have been motivated to use an alkyl polyglycoside in the compositions with a reasonable expectation of success. Likewise, one of ordinary skill in the art would have been motivated to use an alkyl polyglycoside in the composition in conjunction with the sodium alkyl naphthalene sulfonate condensate based on the same teaching of Torrent-Parker et al. wherein the composition comprising a wetting agent and a dispersing agent. As such, one of ordinary skill in the art would have been motivated to use an alkyl polyglycoside in the composition in conjunction with the sodium alkyl naphthalene sulfonate condensate with a reasonable expectation of success, as these are known to be used in agrichemical formulations.
Regarding the limitation that alkyl polyglycoside is from about 3% to about 8% w/w, Chen teaches nonionic surfactant is 1% of the composition. Torrent-Parker et al. teach the composition comprises the wetting agents from about 0.05-20% by weight of the composition. One of ordinary skill in the art would have been motivated to use the teachings of Chen and Torrent-Parker et al. that teaches wetting agent concentrations, including alkyl polyglycosides, that encompass the ranges currently claimed, with a reasonable expectation of formulating an effective insecticidal composition. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredient beneficially taught by the cited references) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been will within the purview of the skilled artisan and no more than an effort to optimize results.
Regarding the limitation wherein glycerol is from about 15% to about 30% w/w, as claimed in claims 1 and 13, Chen teaches compositions in Table 23 that comprise glycerin (glycerol). Since some of the compositions comprise 16% of glycerin, one of ordinary skill in the art would find it obvious to use 16%, which falls within the range of from about 15% to about 30% w/w, in the compositions comprising clothianidin, with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine the teachings of Chen and Torrent-Parker et al. and form a composition wherein clothianidin and attapulgite are dispersed in the composition and glycerol is dissolved in the composition. Chen teaches the clothianidin suspension concentrates are prepared wherein clothianidin, Borresperse NA and water are mixed and milled. The resultant mill base is collected and subdivided. To each sample glycerin was added to finish the formulation. MorwetD425, sodium salt of alkylnaphthalene-sulfonate formaldehyde polymer is mixed in the composition. Torrent-Parker et al. teach the method of preparing the formulation in example 1. The naphthalenesulfonic acid sodium salt, the dispersant, is agitated with copolymer butanol PO/EO. To this homogeneous mixture glycerin, phosphoric acid, and biocide are mixed until homogenous. This would indicate that glycerol are dissolved in the composition. Thiamethoxam is added to the mixture. Silicon dioxide can either be added at this point or post milling, if the product has been micronized. One of ordinary skill in the art would have been motivated to use the same technique to prepare the composition, wherein clothianidin is substituted for thiamethoxam. It would have been obvious to one of ordinary skill in the art that the techniques used to formulate the composition in Chen and Torrent-Parker et al. would produce a composition wherein the dispersant, alkyl polyglycoside or a sodium salt of alkylnaphthalene-sulfonate formaldehyde polymer and glycerol are dissolved, as demonstrated and the clothianidin and inorganic compound, attapulgite, which are milled and/or micronized would be dispersed in the formulation, without evidence to the contrary. In addition, the claims are product-by-process claims. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985)
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Response to Arguments
Applicant's arguments filed October 2, 2025 have been fully considered but they are not persuasive. Applicant argues that Torrent-Parker does not teach from about 3% to about 8% w/w alkyl polyglycoside. In response to Applicant’s argument, Chen teaches nonionic surfactant is 1% of the composition. Torrent-Parker et al. teach the composition comprises the wetting agents from about 0.05-20% by weight of the composition. One of ordinary skill in the art would have been motivated to use the teachings of Chen and Torrent-Parker et al. that teaches wetting agent concentrations, including alkyl polyglycosides, that encompass the ranges currently claimed, with a reasonable expectation of formulating an effective insecticidal composition. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredient beneficially taught by the cited references) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been will within the purview of the skilled artisan and no more than an effort to optimize results.
Applicant argues that nothing in Torrent Parker teaches that clothianidin formulations containing from about 3% to about 8% alkyl polyglycoside and from about 15% to about 30% glycerol would be stable. In response to Applicant’s argument, regarding the limitation wherein glycerol is from about 15% to about 30% w/w, as claimed in claims 1 and 13, Chen teaches compositions in Table 23 that comprise glycerin (glycerol). Since some of the compositions comprise 16% of glycerin, one of ordinary skill in the art would find it obvious to use 16%, which falls within the range of from about 15% to about 30% w/w, in the compositions comprising clothianidin, with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
Applicant indicates a demonstration of unexpected results for the claimed invention. In response to Applicant’s argument, the examiner notes that evidence of nonobviousness must be commensurate in scope with that of the claimed subject matter. Applicant claims an agricultural composition comprising: clothianidin; from about 3% to about 8% w/w alkyl polyglycoside; attapulgite; and from about 15% to about 30% w/w glycerol, wherein w/w denotes weight by total weight of the formulation. While Applicant has amended the claims wherein the amount of glycerol is limited to 15% to 30% w/w, the examples comprise 17.0 and 17.5% w/w of clothianidin. It cannot be determined if the same stability would be demonstrated if any amount of clothianidin is used in the composition. Likewise, it cannot be determined if the same stability would be demonstrated if the compositions comprise the alkyl polyglycoside as the only dispersant, as currently claimed. In addition, the claims are directed to clothianidin, from about 3% to about 8% w/w alkyl polyglycoside, attapulgite, and about 15% to about 30% w/w glycerol, wherein w/w denotes weight by total weight of the formulation. Based on the evidence in the original specification, the compositions comprise, in addition to the components in independent claim 1, an acrylic graft copolymer, a silicone emulsion, 1,2-benzisothiazolin-3-one and phosphoric acid. The stability of the compositions depend not only on the glycerol content and the alkyl polyglycoside content, but the components of the composition, as a whole. Therefore, the examiner notes that the claims are not commensurate in scope with the examples provided.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Andriae M Holt whose telephone number is (571)272-9328. The examiner can normally be reached Monday-Friday, 8:00 am-4:30 pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush can be reached at 571-272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDRIAE M HOLT/ Examiner, Art Unit 1614
/ALI SOROUSH/ Supervisory Patent Examiner, Art Unit 1614