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 .
Applicants’ amendment filed 7/7/2025 has been entered. Claims 4, 5, 8, 9, 11, 12, 14 and 15 were cancelled. Claims 1, 3, 6, 13 and 18 were amended. Claims 1-3, 6, 7, 10, 13 and 16-18 are pending examination.
Withdrawn rejections
Applicant's amendments and arguments filed 7/7/2025 are acknowledged and have been fully considered. Any rejection and/or objection not specifically addressed below is herein withdrawn.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 3 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 3 states that a) is selected from the group of active insecticidal ingredients having a solubility in the chosen solvent g) of not more than 5 g/l which fails to further limit component a) in claim 1 which specifies the compounds tetraniliprole, cyantraniliprole, ethiprole, thiacloprid, spirotetramat and compounds of formula 1 which is a narrower limitation. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 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.
Claims 1-3, 6, 7, 10, 13 and 16-18 are rejected under 35 U.S.C. 103 as being unpatentable over Stork et al. (US 2011/0086848; published April 14, 2011) in combination with Fisher et al. (US 2011/0086762; published April 14, 2011).
Applicant’s Invention
Applicant claims a composition comprising:
at least one active ingredient selected from tetraniliprole, cyantraniliprole, ethiprole, thiacloprid, spirotetramat and compounds of formula 1,
at least one active ingredient selected from flupyradifuron and acetamiprid,
at least one ammonium salt selected from ammonium carbonate, ammonium hydrogen sulfate, ammonium sulfate, ammonium hydrogen carbonate, ammonium carbonate and diammonium hydrogen phosphate
at least one dispersant comprising an alkyl polypropylene glycol-polyethylene glycol compounds of formula (III-a) or (III-d),
optionally, one or more surfactants,
at least one filler selected from modified natural silicates, silicate minerals, synthetic silicates, fumed silicas, attapulgites and fillers based on synthetic polymers,
at least one solvent selected from compounds of formula 4; and
optionally one or more further adjuvants, where a) is insoluble or only sparingly soluble in the chosen solvent g) and wherein g) do not comprise 1,2-propylene glycol.
Determination of the scope and the content of the prior art
(MPEP 2141.01)
With respect to claims 1, 2 and 19 of the instant application, Stork et al. teach a composition comprising at least one active compound selected from compound B and compound A and at least one alkyl polypropylene glycol polyethylene glycol (component d)) of compound I
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wherein R and R’ are independently hydrogen, straight (C1-C5 alkyl) or branched (C3-C5 alkyl), m is 2 or 3, n is 2 or 3, x is 5 to 150, y is 5 to 150 where one radical n or m has the meaning 2 and the other radical n or m has the meaning 3 [0019-25; limitation of compound III-d in claim 1]. The composition generally comprises 1-90% by weight of one or more solvents [0089]. Suitable solvents include 1-90% by weight of water-soluble and/or water-miscible solvents including propylene glycol, polyethylene glycol (component g)) and methoxy-2-propanol [0090]. Further optional ingredients that may be added include crystallization inhibitors, wetting agents, emulsifiers and water generally from 0-30% of the composition (component h)[0091]. The emulsifiers include surfactants and their ammonium salts (component c)) [0095]. The compositions are used as insecticides against green peach aphids (Example IV) [0208].
With respect to claim 13, the nonionic surfactants include sulfated formaldehyde condensation products with alkyl aromatics and ditolyl ether including Baykanol SL (component e)) [0096].
With respect to claims 3 and 10, suitable active compounds include water-soluble and water-insoluble agrochemically active compounds, including imidacloprid, thiacloprid, clothianidin, acetamiprid, flonicamid, and flupyradifuron (Compound B) [0051] and a further insecticide or acaricide selected from deltamethrin, ketoenol derivatives such as spirotetramat (components a) and b)) [0053-63].
With respect to claims 16 and 17, the composition generally comprise 1-50% by weight of active ingredients (components a) and b)) [0082]. The alkyl propylene glycol polyethylene glycol compound is preferably 5-45% by weight of the composition (component d)) [0083]. The solvent ranges from 1-90% of the formulation (component g)) [0100]. The additional additives range from 0-30% of the formulation (components c), e) and h)) [0101].
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
With respect to claims 1-3, 6, 7, 10, 13 and 16-18, Stork et al. do not teach the addition of filler (component f)) selected from attapulgite, silicates and silica, however formulations are in the form of emulsions, suspensions, solutions or aerosols to improve penetration of the agrochemically active compounds [0105].
With respect to claims 1, 6, 7 and 18, Stork et al. teach keto-enol compounds but not keto-enol based on tetramic acids of formula I, preferably formula I-2.
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With respect to claims 1 and 18, Stork et al. teach ammoniums salts, but not ammoniums salts selected from ammonium sulfate (AMS) and diammonium hydrogenphosphate (DAHP). It is for this reason that Fischer et al. is combined.
Fischer et al. teach novel 4’4’-dioxaspiro-spirocyclically substituted tetramates and methods of increasing the activity of the compounds by adding ammonium salts (abstract). The active ingredients are mixed with extenders that are liquid solvents and/or solid carriers, optionally with surfactants and emulsifiers [0466]. Suitable solid carriers include attapulgite, silicates, and silica [0323; 0468]. The ammonium salts added to the formulations for post-emergence are selected from ammonium sulphate or ammonium thiocyanate [0479]. The tetramic acid compound of formula I-2 is disclosed and used to prepare suspension concentrates (A.5 [0492-493]). The formulations were applied to cabbage plants and had insecticidal effects on green peach aphids (Example B, E and G; [0519-0522, 0533-539, 0547-552]).
With respect to claim 16 and 17, Stork et al. teach additional additives range from 0-30% of the formulation (components c), e) and h)) [0101]. Therefore, one of ordinary skill would have been motivated to combine the teachings of Stork et al. and Fischer et al. and adjust the amount of (component f)) within the claim ranges by routine optimization to a liter with a reasonable expectation of success.
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
Stork et al. and Fischer et al. are both drawn to methods of making insecticidal formulations that are used against green peach aphids.
Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Stork et al. and Fischer et al. and include fillers selected from attapulgite, silicates and silica with a reasonable expectation of success. One of ordinary skill would have been motivated before the time of filing to combine the teachings of Stork et al. and Fischer et al. to further include fillers selected from attapulgite, silicates and silica because Fischer et al. teach active ingredients are combined with these fillers to act as extenders and solid carriers.
It would have been prima facie obvious to one of ordinary skill to combine the teachings of Stork et al. and Fischer et al. and include a compound of formula (I-2) as active ingredient a) with a reasonable expectation of success. One of ordinary skill would have been motivated before the time of filing to combine the teachings of Stork et al. and Fischer et al. to further include the compound of formula (I-2) because Fischer et al. teach that formulations comprising the compound have insecticidal activity and successfully kill green peach aphids.
Furthermore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Stork et al. and Fischer et al. and further include ammonium sulfate with a reasonable expectation of success. One of ordinary skill would have been motivated before the time of filing to combine the teachings of Stork et al. and Fischer et al. to further include ammonium sulfate because Fischer et al. teach ammonium salts added to the formulations for post-emergence are selected from ammonium sulphate because adding ammonium salts shows increased insecticidal activity of the compounds.
Response to Arguments
Applicant's arguments filed 7/7/2025 have been fully considered but they are not persuasive.
First, Applicant argues that Stork and Fischer et al. do not teach the use of an inorganic filler, a combination of a dissolved active ingredient and insoluble active ingredient and the combined use of ammonium salt, dispersant of formula IIIa or IIId and solvent g) because the ammonium salt is separate from the formulation. The Examiner is not persuaded by this argument Fischer et al. teach compounds of formula I-2 and methods of increasing the activity of the compounds by adding ammonium salts (abstract). The ammonium salts are added post-emergence and include ammonium sulphate [0479]. Therefore, combining compound I-2, ammonium sulphate with the formulation disclosed by Stork et al would have been prima facie obvious because both Stork and Fischer et al. are drawn to methods of making insecticidal formulations that are used against green peach aphids. Furthermore, adding suitable solid carriers selected from attapulgite, silicates, and silica would have been prima facie obvious since both Stork and Fischer are drawn to insecticidal formulations [0323; 0468].
Next, Applicant argues that the presently claimed invention demonstrates unexpected results, namely improved storage stability after 24 hours. The Examiner has considered the data, however the showing is not commensurate in scope with the claims. Only compositions comprising 0.1 g/L compound I-2, 0.5 g/L flupyradifurone, 1.8-2.5 g/L dipropylene glycol monomethyl ether or propylene glycol mono methyl ether, 1.2-1.8 propylene glycol mono methyl ether, propylene glycol or dipropylene glycol, 1.3 g/L Antarox B/848 and 1.6 g/L DAHP (diammonium hydrogen phosphate) demonstrate unexpected results (Table V, formulations 6-8). Therefore, the rejection has been maintained.
Conclusion
No claims 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIELLE D JOHNSON whose telephone number is (571)270-3285. The examiner can normally be reached Monday-Friday 9:00 am-5:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany Barham can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
DANIELLE D. JOHNSON
Examiner
Art Unit 1617