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 1-9 and 11-14.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 04/08/2026 has been entered.
Applicants' arguments, filed 04/08/2026, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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
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 1-9 and 11-14 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 Tedders et al., (US 5785245 A, July 28, 1998) (hereinafter Tedders), Jackson et al. (US 5,359,807, Nov. 1, 1994) (hereinafter Jackson), and Ferrero et al. (US 2017/0231255, Aug. 17, 2017) (hereinafter Ferrero).
Shasha discloses biological control agents such as pathogenic bacteria and viruses encapsulated into a dispersion of pregelatinized starch, and formulated as sprayable liquids (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). The starting encapsulating material for use in the invention includes any pregelatinized starch (i.e., modified), which will retrograde to form a gel upon rehydration in an aqueous medium, and thereafter be amylase digestible (col 3, lines 36-39), including cornstarch (col 3, lines 51-52). 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 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 biological control agent is applied to the foliage of a crop plant (col 5, lines 38-40). Initial concentrations of the starch in the sprayable formulation should be in the range of about 1-10% by weight (col 5 lines 64-66). The relative amount of the starch with respect to the agent is sufficient to entrap the agent within a matrix of the starch (Claim 1a). Table II shows wherein the encapsulated material may be treated with amylase. The amylase is a Termamyl amylase (col. 8, line 21). Suitable Termamyl amylases include Termamyl 120, which is an α-amylase (col. 6, lines 40-41). The α-amylase releases the encapsulated substance (col. 6, lines 39-41).
Shasha differs from the instant claims insofar as not disclosing predatory biocontrol agents from the phytoseiidae family of the genus Phytoseiulus.
However, 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), and combinations of sucrose-starch mixtures (col 5, lines 32-33). 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).
Jackson discloses wherein a biocontrol agent can be a virus, bacteria, fungi, rickettsia, nematodes, eggs of predatory mites, etc. The biocontrol agent can be dispersed in a powdered carrier such as a starch, such as corn starch (col. 4, lines 8-14).
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 obvious to one of ordinary skill in the art to have incorporated predatory biocontrol agents from the phytoseiidae family of the genus Phytoseiulus into the composition of Shasha since they are known and effective biocontrol agents as taught by Tedders. One of ordinary skill in the art would have had a reasonable expectation of success since the compositions of Shasha and Tedders are both sprayable aqueous compositions and it was known in the art that starch carriers may comprise biocontrol agents other than entopathogens as taught by Jackson.
The combined teachings of Shasha, Tedders, and Jackson 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 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 teaches that the encapsulated substance is sufficiently protected to be controllably released and wherein treatment with α-amylase releases the encapsulated substance. Accordingly, it would have taken no more than the relative skills of one of ordinary skill in the art through routine experimentation with α-amylase 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 that the encapsulated substance is sufficiently protected to be controllably released and wherein treatment with α-amylase releases the encapsulated substance. 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 α-amylase 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 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 initial concentrations of the starch (i.e., thickening agent/gelling agent) in the sprayable formulation should be in the range of about 1-10% by weight and the relative amount of the starch with respect to the agent is sufficient to entrap the agent within a matrix of the starch. Accordingly, one of ordinary skill in the art would have been capable of arriving at one or more thickening and/or gelling agents present in a quantity between 0.5 and 200 g/L through routine optimization, according to the amount of the starch (i.e., thickening agent/gelling agent) sufficient to entrap the agent, as taught by Shasha. 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 argues that Shasha does not contemplate encapsulation of mites.
The Examiner does not find Applicant’s argument to be persuasive. As discussed in the rejection, starch carriers are effective for biocontrol agents other than microorganisms as taught by Jackson. For example, Jackson discloses wherein starch carriers are effective for biocontrol agents such as eggs of predatory mites. Therefore, it would have been obvious to one of ordinary skill in the art that the starch carrier of Shasha may encapsulate biocontrol agents other than microorganisms, such as mites. As such, Applicant’s argument is unpersuasive.
Applicant argues that the mites of the Phytoseiulus genus are not of microorganism type, cannot be ingested by their target species, and do not infect these target species.
The Examiner does not find Applicant’s argument to be persuasive. Shasha does not require the composition to be ingested by a target species. As discussed above and in the rejection, Shasha discloses wherein the encapsulated substance may be controllably released to a wide variety of environments and resistant to losses by environmental conditions. A wide variety of environments is not limited to the digestive tract of a target species. Also, Tedders discloses a sprayable liquid like Shasha and Tedders does not disclose wherein its sprayable liquid comprising starch has to be ingested. Therefore, it would have been obvious to one of ordinary skill in the art that the sprayable liquid of Shasha does not have to be ingested. Furthermore, Shasha discloses in the abstract wherein the encapsulation product is for controlling insects and other pest species. One may control insects and other pest species with mites that prey on them. As such, the composition of Shasha is not limited to infecting a target species. As such, Applicant’s argument is unpersuasive.
Applicant argues that in view of the difference in size and structure of mites of the Phytoseiulus genus compared to microorganisms disclosed and contemplated in Shasha, the skilled person would not have been incited to introduce such mites in the compositions of Shasha.
The Examiner does not find Applicant’s argument to be persuasive. Shasha discloses in col. 7, lines 16-18 wherein the particles were sieved into various mesh sizes. Thus, the composition of Shasha would not exclude mites since the composition may be of various sizes. Also, as discussed above and in the rejection, starch carriers may comprise biocontrol agents other than microorganisms. Thus, further supporting that the composition of Shasha would be suitable with mites. As such, Applicant’s argument is unpersuasive.
Applicant argues that the skilled person would not have expected that such mites of the Phytoseiulus genus could have been successfully homogenously dispersed in a gel composition.
The Examiner does not find Applicant’s argument to be persuasive. Tedders discloses in col. 6, lines 5-6 wherein insects or eggs are kept evenly suspended in the aqueous suspension by a stir bar magnet. Thus, mites can be successfully homogenously dispersed and Applicant’s argument is unpersuasive.
Applicant argues that the skilled person could not expect that these Phytoseiulus organisms could survive in aqueous solutions during a time sufficient to enable their spreading.
The Examiner does not find Applicant’s argument to be persuasive. As discussed above and in the rejection, Tedders discloses mites in an aqueous suspension. Therefore, it would have been obvious to one of ordinary skill in the art that mites could survive in aqueous solutions during a time sufficient to enable their spreading. As such, Applicant’s argument is unpersuasive.
Response to Declaration
Declarant’s arguments have been addressed above and are unpersuasive.
Conclusion
Claims 1-9 and 11-14 are rejected.
No claims are allowed.
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/TRACY LIU/Primary Examiner, Art Unit 1614
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