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 . Claims included in the prosecution are claims 1, 4-6, 8, 9 and 11-14.
Applicants' arguments, filed 09/08/2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
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 nonobviousness.
1. Claims 1, 4, 8, 9, 11, 12 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Shasha et al., (US 4859377 A, Aug. 22, 1989) (hereinafter Shasha) in view of Jackson et al. (US 5,359,807, Nov. 1, 1994) (hereinafter Jackson), Tedders et al., (US 5785245 A, July 28, 1998) (hereinafter Tedders), Hance et al. (US 2004/0231601, Nov. 25, 2004) (hereinafter Hance), and Ferrero et al. (US 2017/0231255, Aug. 17, 2017) (hereinafter Ferrero).
Shasha discloses biological control agents such as pathogenic bacteria and viruses encapsulated in a dispersion of pregelatinized starch. The dispersion can be formulated as a sprayable liquid. The encapsulated product is useful in controlling insects and other pest species (Abstract). The encapsulated substance is sufficiently protected to be controllably released to a wide variety of environments, and resistant to losses by environmental conditions (col 3, lines 9-12). Encapsulation of the biocontrol agent into the starch matrix is initiated by uniformly (i.e., homogenously) dispersing the agent throughout an aqueous dispersion of the pregelatinized starch (col. 4, lines 32-35). The dispersion will gel at room temperature within about 5-60 sec (col. 4, lines 41-42). The starch concentration is within the range of about 25-40% solids by weight, so as to promote rapid gelling (col. 4, lines 55-57). The encapsulating material may be dispersed in water (col 6, lines 2-3). The order of combining the various components of the formulation is not critical and may be conducted in whatever manner best facilitates the process (col 4, lines 35-37). The biocontrol agents contemplated for use include without limitation all bacteria, fungi, yeasts, viruses, microsporidians, protozoa, and other lower organisms which are pathogenic toward target pests (col. 3, lines 59-62). The biological control agent is applied to the foliage of a crop plant (col 5, lines 38-40). Table II shows wherein the encapsulated material may be treated with amylase.
Shasha differs from the instant claims insofar as not disclosing wherein the biological control agents are from the phytoseiidae family of the genus Phytoseiulus.
However, Jackson discloses wherein a biocontrol agent can be a virus, bacteria, fungi, rickettsia, nematodes, eggs of predatory mites, etc. (col. 4, lines 8-14).
Tedders discloses a backpack sprayer for spraying arthropods, such as beneficial mites, directly onto plants which uses excess air to produce a coarse or fine spray of an aqueous suspension containing the arthropods as they exit from a spray gun (Abstract). The arthropods are viable biocontrol agents (Claim 2). Aqueous suspensions for use in backpack sprayer may include mites of the Phytoseiulus spp. (col 5, lines 24-26). The spray containing mites quickly dries on plants and the mites then begin searching activity for prey (col 5, lines 39-41). Examples include the predaceous mites, Phytoseiulus persimilis (col 6, lines 54-56).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Shasha discloses wherein the composition comprises biological control agents. Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to have incorporated Phytoseiulus persimilis into the composition of Shasha since predatory mites are known and effective biocontrol agents as taught by Jackson and Phytoseiulus persimilis is a known and effective predatory mite as taught by Tedders. One of ordinary skill in the art would have had a reasonable expectation of success since Tedders discloses the mites in an aqueous suspension and the biocontrol agent of Shasha is dispersed throughout an aqueous dispersion.
The combined teachings of Shasha, Jackson, and Tedders do not teach wherein the starch is replaced with carrageenan.
However, Hance discloses use of polymer beads (carrageenan) or capsules to rear endoparasitoids of insects in vitro (¶ [0001]). Endoparasitoids are often effective biological control agents (¶ [0006]). The term endoparasitoid relates to an insect that completes its larval development within the body of another insect eventually killing it (¶ [0022]). Carrageenan is chosen because it is natural, non-toxic, completely biodegradable, and safe for the environment (¶ [0026]). Carrageenan is a thickener (¶ [0025]). The composition may be sprayed for mass release in agricultural field or in every place or time needed for biological control of insect pest by endoparasitoid (¶ [0016]).
As discussed above, Shasha discloses a composition that is sprayable and comprises starch as a gelling agent and it would have been obvious to have incorporated Phytoseiulus persimilis as the biological control agent of Shasha. Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to have used carrageenan instead of starch in the composition of Shasha since carrageenan is known and effective gelling agent for biocontrol agents that are alive, it can be sprayed, and it is natural, non-toxic, completely biodegradable, and safe for the environment as taught by Hance.
The combined teachings of Shasha, Jackson, Tedders, and Hance do not teach wherein the gel has a dynamic viscosity at zero velocity gradient between 1 and 30,000 mPa·s.
However, Ferrero discloses a sprayable aqueous composition intended for feeding biological control agents comprising eggs from at least one arthropod species and one or more thickeners and/or gelling agents (abstract). Advantageously, the thickeners and/or gelling agents are present in a quantity that provides the composition with a dynamic viscosity at zero velocity gradient between 0.005 and 250 Pa·s (¶ [0052]). The composition, once it is prepared, has a viscosity suitable for spraying and then, once it is sprayed, its viscosity increases to adhere to that onto which it has been sprayed, for example the leaves and stems of plants (¶ [0054]). Suitable thickeners include modified starches (¶ [0066]).
Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to have formulated the composition of Shasha to have a dynamic viscosity at zero velocity gradient between 0.005 and 250 Pa·s since this is a known and effective viscosity for sprayable aqueous compositions and such viscosity allows the composition to adhere to that onto which it has been sprayed as taught by Ferrero.
Regarding the limitation of claim 8 reciting “wherein said one or more thickening and/or gelling agents is present in a quantity between 0.5 and 200 g/L,” as discussed above, Shasha teaches that the concentration of starch should promote rapid gelling. Thus, since it would have been obvious to have used carrageen instead of starch as the gelling agent, it would have taken no more than the relative skills of one of ordinary skill in the art to have to have arrived at the claimed amount of carrageenan through routine experimentation based on the amount needed to promote rapid gelling. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A).
2. Claims 5, 6, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Shasha et al., (US 4859377 A, Aug. 22, 1989) (hereinafter Shasha) in view of Jackson et al. (US 5,359,807, Nov. 1, 1994) (hereinafter Jackson), Tedders et al., (US 5785245 A, July 28, 1998) (hereinafter Tedders), Hance et al. (US 2004/0231601, Nov. 25, 2004) (hereinafter Hance), Ferrero et al. (US 2017/0231255, Aug. 17, 2017) (hereinafter Ferrero), and further in view of Vemmer et al. (Review of encapsulation methods suitable for microbial biological control agents, Sep. 12, 2013) (hereinafter Vemmer) and Chauhan et al. (Bacterial carrageenases: an overview of production and biotechnological applications, Jun. 23, 2016). (hereinafter Chauhan).
The teachings of Shasha, Jackson, Tedders, Hance, and Ferrero are discussed above. Shasha, Jackson, Tedders, Hance, and Ferrero do not teach wherein the composition comprises an enzyme capable of degrading the gel at a concentration allowing a total degradation of said gel in less than 12 hours.
However, Vemmer discloses that encapsulation within a matrix protects microbial biological control agents from biotic and abiotic stress factors (contaminations, soil antagonists, temperature, dryness, UV light, mechanical stress) by providing a beneficial microenvironment. As a function of the material properties cells may be released slowly by growth out of the matrix or degradation of the encapsulation material, leading to an increased establishment in soil or on leaf and an extended persistence after application, resulting again in a decreased number of applications and a reduced dose (page 381, left column, last paragraph).
Chauhan discloses wherein enzymes k-, i-, and k-carrageenases degrade carrageenans (abstract).
As discussed above, Tedders discloses wherein the mites begin activity search for prey once dried on plants. Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to have incorporated enzymes k-, i-, or k-carrageenases into the composition of Shasha in order to release the mites from the composition since degradation of the encapsulation material is a known and effective method to release biological control agents as taught by Vemmer and enzymes k-, i-, or k-carrageenases are effective for degrading the encapsulation material of the prior art, which is carrageenan as taught by Chauhan. One of ordinary skill in the art would have had a reasonable expectation of success since Shasha discloses wherein the composition is treated with an enzyme (e.g., amylase).
Regarding the limitation of claim 5 reciting wherein the rate of release from the gel of living biocontrol agents of the phytoseiidae family of the genus Phytoseiulus is greater than 60%, as discussed above, Shasha discloses wherein the biological control agent is controllably released. Accordingly, it would have taken no more than the relative skills of one of ordinary skill in the art through routine experimentation with enzymes k-, i-, or k-carrageenases amounts to have arrived at the claimed release rate depending on the controlled release rate desired. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A).
Regarding claims 6 and 13 reciting wherein the enzyme is at a concentration allowing a total degradation of said gel in less than 12 hours, and 2 hours, respectively, as discussed above, Shasha teaches wherein the biological control agent is controllably released. Accordingly, it would have taken no more than the relative skills of one of ordinary in the art through routine experimentation to have arrived at the claimed concentration of enzymes k-, i-, or k-carrageenases depending on the controlled release rate desired. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A).
Response to Arguments
Applicant’s arguments have been considered but are moot because new rejections necessitated by Applicant’s amendment have been made.
Conclusion
Claims 1, 4-6, 8, 9 and 11-14 are rejected.
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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/TRACY LIU/ Primary Examiner, Art Unit 1614
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