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 .
DETAILED ACTION
Claims 3, 4, 6, 9, 10, 15-17 and 49 are under consideration.
Election/Restrictions
Applicant's election with traverse of Group I, claims 3, 4, 6, 9, 10, 15-17 and 49, drawn to compositions comprising at least one agrochemical active and no more than 15 wt% sulfopolymer in the reply filed on March 13, 2025 is acknowledged. The traversal is on the ground(s) that examination would not be a serious burden because the searches would be coextensive. This is not found persuasive because the instant Application is a 371 of PCT/US2020/050822 and unity of invention standards apply. Burden is not a factor in the determination of unity of invention. See MPEP 801 and 1850.
Applicant’s election of the species sulfoisophthalate reading on claims 1-49 in the reply filed on August 27, 2025 is acknowledged.
The requirement is still deemed proper and is therefore made FINAL.
Claims 18, 24, 28, 29, 34, 35 and 47 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to nonelected inventions, there being no allowable generic or linking claim.
Claims 3, 4, 6, 9, 10, 15-17 and 49 as filed on March 16, 2022 are pending and under consideration to the extent of the elected species, e.g., the species of sulfopolymer is sulfoisophthalate.
In the process of searching, the Examiner found art on the broader recitation of the claims. Said art has been applied in the interest of compact prosecution.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on August 4, 2022, November 2, 2023, January 26, 2024, March 13, 2025 and August 29, 2025 were considered.
Specification
The use of terms such as Solvesso™ (e.g., paragraphs [0111], [0180], [0187], [0189], [0216]), which are trade names or marks used in commerce, has been noted in this application. The terms should be accompanied by the generic terminology; furthermore the terms should be capitalized wherever they appear or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the terms.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Objections
Claims 6, 15 and 49 are objected to because of the following informalities:
Claim 6: the preamble should recite “The agricultural composition” consistent with the other dependent claims.
Claim 15: the preamble should recite “The agricultural composition of claim” consistent with the other dependent claims.
Claim 15: “the one or more active agents” should recite “the at least one agrochemical active ingredient” consistent with the antecedent.
Claim 15: a comma should be inserted after “an insecticide”.
Claim 49: the preamble should recite “The agricultural composition of claim” and a comma should be inserted after the preamble consistent with the other dependent claims.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 3, 4, 6, 9, 10, 15-17 and 49 are rejected 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.
Claim 3 recites a composition characterized by improved dispersal and/or re-dispersal activity. “Improved” is a relative term which renders the claim indefinite. The term “improved” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. While claims 4 and 6 recite an improvement relative to a control, the specification fails to provide any guidance as to what factors change and how these changes constitute an improvement. Claims 4, 6, 9, 10, 15-17 and 49 are included in this rejection because they depend from claim 3 and because they do not remedy the noted ambiguities. Claim 4 is also included in this rejection because it is unclear what qualitative factor is employed to achieve the claimed at least 10% improvement.
Claim 6 recites the control agrochemical composition. There is insufficient antecedent basis for this limitation in the claim. Claim 6 may properly depend from claim 4.
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.
Claims 3, 4, 6, 15-17 and 49 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Haesslin (US 5,674,514, published October 7, 1997, of record).
Haesslin is applied herewith on the broader recitation of the claims in an effort to expedite prosecution
Regarding claims 3, 4, 6, 15, 17
Haesslin teaches storage stable pesticidal aqueous emulsions comprising an aqueous phase comprising surfactants and/or dispersants and comprising an emulsion-stabilizing amount / 1 to 30 wt%, preferably 1 to 10 wt% of polymer selected from the group inclusive of polysulfones (sulfopolymers) (title; abstract; claims, in particular claims 1, 10-13; columns 1-22, in particular column 5, lines 36 and 65-67).
Regarding the instantly claimed properties of improved (re-)dispersal, at least 10% improved (re-)dispersal, improved (re-)dispersal relative to a control, because Haesslin anticipates compositions as instantly claimed, it necessarily follows that the compositions of Haesslin are also characterized by such improved (re-)dispersal because a chemical composition and its properties are inseparable. See MPEP 2112.01.
Regarding claim 16
Haesslin teaches pesticides inclusive of O,O-diethyl O-2-isopropyl-6-methylpyrimidin-4-yl phosphorothioate (insecticide) (claim 1).
Regarding claim 49
Haesslin teaches polymers inclusive of rosin (column 5, lines 39-43).
Claims 3, 4, 6, 9, 10 and 15-17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Haesslin et al. ‘824 (US 2004/0038824, published February 26, 2004).
Regarding claims 3, 4, 6, 9, 10, 15-17
Haesslin ‘824 teaches agrochemical compositions comprising a surface active compound inclusive of diglycol cyclohexyldimethanol isophthalate sulphoisophthalate mixed polyesters and further comprising an herbicide (pesticide) and exemplifies compositions comprising 0.1, 0.5, 1 or 2 wt% of surface active compound (title; abstract; claims, in particular 1, 4, 5; paragraphs [0022], [0024], [0046], [0047]). The exemplary compositions further comprise inter alia water (solvent).
Regarding the instantly claimed properties of improved (re-)dispersal, at least 10% improved (re-)dispersal, improved (re-)dispersal relative to a control, because Haesslin ‘824 anticipates compositions as instantly claimed, it necessarily follows that the compositions of Haesslin ‘824 are also characterized by such improved (re-)dispersal because a chemical composition and its properties are inseparable. See MPEP 2112.01.
The above teachings therefore anticipate the claims.
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claim 49 is rejected under 35 U.S.C. 103 as being unpatentable over Haesslin et al. ‘824 (US 2004/0038824, published February 26, 2004) as applied to claims 3, 4, 6, 9, 10 and 15-17 above, and further in view of Crosby et al. (US 2014/0018240, published January 16, 2014, IDS reference filed August 4, 2022).
The teachings of Haesslin ‘824 have been described supra with regard to the anticipation of claims 3, 4, 6, 9, 10 and 15-17.
Haesslin ‘824 does not teach a rosin as required by claim 49.
This deficiency is made up for in the teachings of Crosby.
Crosby teaches methods and compositions for reducing or inhibiting spray drift comprising the step of adding at least one resin inclusive of a rosin ester to the composition before spraying (title; abstract; claims, in particular 1, 3-5, 7, 8, 10). The methods are suitable for agrochemicals inclusive of herbicides (claims 5, 10).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the agrochemical compositions of Haesslin ‘824 to further comprise at least one resin inclusive of a rosin ester as taught by Crosby in order to reducing or inhibit spray drift. There would be a reasonable expectation of success because the method of Crosby is suitable for agrochemicals.
Double Patenting
The nonstatutory 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 nonstatutory 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 nonstatutory 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 nonstatutory 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.
Claims 3, 4, 6, 9, 10, 15-17 and 49 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of U.S. Patent No. 12,446,576.
Although the claims at issue are not identical, they are not patentably distinct from each other because the agrochemical compositions of the patented claims comprise at least one agrochemical active ingredient inclusive of herbicides and up to 15 wt% of a sulfopolymer that is a sulfopolyester comprising sulfoisophthalate repeating units and optionally further comprise water (solvent) or a rosin. Therefore, the compositions of the patent claims anticipate or/and render obvious the compositions of the instant claims, where the instantly claimed property of improved (re)dispersal is a property of the compositions. See MPEP 2112.
Claims 3, 4, 6, 9, 10, 15, 17 and 49 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 39, 40, 43, 47, 49, 52 and 53 of copending Application No. 17/753,829 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because the agricultural compositions of the copending claims comprise active ingredient(s) selected from inter alia a pesticide, 0.5 to 15 wt% of a sulfopolyester comprising a salt of a sulfoisophthalate moiety, solvent(s) and rosin. Therefore, the compositions of the copending claims anticipate the compositions of the instant claims, where the instantly claimed property of improved (re)dispersal is a property of the compositions. See MPEP 2112.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 3, 4, 6, 9, 10, 15-17 and 49 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 39, 40, 43, 47, 49, 52 and 53 of copending Application No. 17/753,829 in view of Crosby et al. (US 2014/0018240, published January 16, 2014, IDS reference filed August 4, 2022).
The instant claims are drawn to compositions comprising at least one agrochemical active ingredient and no more than 15 wt% sulfopolymer and are characterized by improved (re)dispersal. The sulfopolymer may comprise a salt of sulfoisophthalate or may comprise inter alia a sulfopolyester. The at least one agrochemical active ingredient may comprise a pesticide such as an herbicide. The compositions may further comprise inter alia a solvent or a rosin.
The copending claims are drawn to compositions comprising active ingredient(s) selected from inter alia a pesticide, 0.5 to 15 wt% of a sulfopolyester comprising a salt of a sulfoisophthalate moiety, solvent(s) and rosin.
The instant claims differ from the copending claims with respect to the species of pesticides such as an herbicide, however, this difference is bridged by the disclosure of Crosby of herbicides as an art-recognized obvious variant of pesticide agrochemicals (e.g., claim 10). Therefore, it would have been obvious to modify the active ingredient(s) of the copending claims to comprise herbicides as taught by Crosby because simple substitution of functionally equivalent elements yields predictable results.
This is a provisional nonstatutory double patenting rejection.
Claims 3, 4, 6, 9, 10, 15-17 and 49 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 4, 7, 9, 15-17, 49 and 50 of copending Application No. 17/753,795 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because the agricultural compositions of the copending claims comprise one or more active agents inclusive of pesticides inclusive of herbicides and a no more than 15 wt% sulfopolymer comprising a salt of a sulfoisophthalate moiety and/or a sulfopolyester and optionally further comprise solvents(s) or a rosin. Therefore, the compositions of the copending claims anticipate or/and render obvious the compositions of the instant claims, where the instantly claimed property of improved (re)dispersal is a property of the compositions. See MPEP 2112.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 3, 4, 6, 9, 10, 15-17 and 49 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2, 7, 10, 14-16, 45 and 46 of copending Application No. 17/753,830 in view of Haesslin et al. ‘824 (US 2004/0038824, published February 26, 2004).
Withdrawn compositions claims of the copending Application are included in this rejection because withdrawn claims are still pending
The instant claims are drawn to compositions comprising at least one agrochemical active ingredient and no more than 15 wt% sulfopolymer and are characterized by improved (re)dispersal. The sulfopolymer may comprise a salt of sulfoisophthalate or may comprise inter alia a sulfopolyester. The at least one agrochemical active ingredient may comprise a pesticide such as an herbicide. The compositions may further comprise inter alia a solvent or a rosin.
The copending claims are drawn to compositions comprising one or more active agents and a sulfopolymer comprising a salt of sulfoisophthalate and/or a sulfopolyester. The one or more active agents may comprise a pesticide such as an herbicide. The compositions may further comprise inter alia a solvent or a rosin.
The instant claims differ from the copending claims with respect to the amount of sulfopolymer, however, this difference is bridged by the disclosure of Haesslin ‘824 of agrochemical compositions comprising 0.1, 0.5, 1 or 2 wt% of surface active compounds inclusive of diglycol cyclohexyldimethanol isophthalate sulphoisophthalate mixed polyesters (sulfopolymer comprising a salt of sulfoisophthalate and/or a sulfopolyester). Therefore, it would have been obvious to modify the amount of the sulfopolymer of the copending claims within the range taught by Haesslin ‘824 because the range of Haesslin ‘824 is suitable for agrochemical compositions.
This is a provisional nonstatutory double patenting rejection.
Claims 3, 4, 6, 9, 10, 15-17 and 49 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 3-5, 7, 8, 11, 15-17 and 49 of copending Application No. 17/753,839 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because the agricultural compositions of the copending claims comprise at least one agrochemical active ingredient inclusive of pesticides inclusive of herbicides and a no more than 15 wt% sulfopolymer comprising a salt of a sulfoisophthalate moiety and/or a sulfopolyester and optionally further comprise solvents(s) or a rosin. Therefore, the compositions of the copending claims anticipate or/and render obvious the compositions of the instant claims, where the instantly claimed property of improved (re)dispersal is a property of the compositions. See MPEP 2112.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALISSA PROSSER whose telephone number is (571)272-5164. The examiner can normally be reached M - Th, 10 am - 6 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, DAVID BLANCHARD can be reached on (571)272-0827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALISSA PROSSER/
Examiner, Art Unit 1619
/MARIANNE C SEIDEL/Primary Examiner, Art Unit 1600