DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 6 February 2026 has been entered.
Status of the Claims
Claims 1-6 and 9-18 are pending.
Withdrawn Rejections
Rejections and/or objections not reiterated from the previous Office Action are hereby withdrawn.
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.
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 1-6 and 9-18 are rejected under 35 U.S.C. 103 as being unpatentable over Wu et al. (US 2012/0122688 A1) in view of McKnight et al. (US 2013/0123104 A1) and Bissell et al. (US 2018/0184647 A1).
Regarding instant claim 1, Wu et al. teach a composition comprising a pesticide and an incompletely hydrated water soluble polymer suspended in a liquid medium. The composition is concentrated blend of a pesticide and a polymeric drift control and/or deposition aid that is stable, has a low viscosity, is easily transportable, is pourable and pumpable under field conditions, and is dilutable with water under field conditions to form a dilute pesticide composition for spray application to target pests. In one embodiment, the present invention is directed to a composition, comprising, based on 100 parts by weight (pbw) of the composition, from greater than 0 to about 70 pbw of a pesticide and from greater than 2.5 to about 8 pbw of a guar polymer suspended in an aqueous medium ([0006]-[0009]). Wu et al. further teach a composition comprising, based on 100 pbw of the composition:
from greater than 0 pbw, or greater than or equal to about 10 pbw, or greater than or equal to about 30 pbw, a liquid medium,
from greater than 0 pbw, or from about 2 pbw, or from about 10 pbw, or from about 15 pbw or from about 25 pbw, to about 70 pbw, or to about 65 pbw, or to about 60 pbw, or to about 55 pbw, of a pesticide dissolved or dispersed in the liquid medium,
from greater than 0 pbw, or from about 0.1 pbw, or from about 1 pbw, or from about 1.5 pbw, or from about 2 pbw, or from greater than 2.5 pbw, or from about 3 pbw, to about 30 pbw, or to about 25 pbw, or to about 20 pbw, or to about 15 pbw, or to about 12 pbw, of a water soluble polymer, wherein at least a portion of the water soluble polymer is incompletely hydrated, more typically wherein at least a portion of the water soluble polymer is in the form of particles, and at least a portion of such particles are dispersed, more typically, suspended, in the liquid medium,
optionally, from 0 pbw, or from about 0.1 pbw, or from about 0.2 pbw, or from about 0.5 pbw, to about 10 pbw or to about 5 pbw, of a suspending agent dissolved or dispersed in the liquid medium, and
optionally, from 0 pbw, or from about 10 pbw, or from about 15 pbw, or from about 20 pbw, to about 70 pbw, or to about 60 pbw, or to about 50 pbw, of a hydration inhibitor dissolved or dispersed in the liquid medium ([0086]-[0091]). See also [0100]-[0122].
Wu et al. teach in one embodiment, the non-aqueous medium comprises an organic liquid that is not miscible in all proportions with water (a “water immiscible organic liquid”), such as, for example, non-polar organic liquids, long chain, e.g., C8 or greater, alcohols, fatty acid esters, and alkylated fatty acid esters. Suitable fatty acid esters include alkyl or hydroxyalkyl esters of (C12-C22)carboxylic acids, such as butyl myristate, cetyl palmitate, decyloleate, glyceryl laurate, glyceryl ricinoleate, glyceryl stearate, glyceryl isostearate, hexyl laurate, isobutyl palmitate, isocetyl stearate, isopropyl isostearate, isopropyl laurate, isopropyl linoleate, isopropyl myristate, isopropyl palmitate, isopropyl stearate, propylene glycol monolaurate, propylene glycol ricinoleate, propylene glycol stearate, and propylene glycol isostearate, and mixtures thereof, including vegetable oils, such as castor oil, coconut oil, corn oil, cotton seed oil, olive oil, palm kernel oil, rapeseed oil, safflower seed oil, sesame seed oil, and soybean oil, and (C1-C3)alkylated esters of (C12-C22)carboxylic acids, such as methylated rapeseed oil and methylated soybean oil ([0041]).
In one embodiment, the liquid medium is an aqueous liquid medium. As used herein, the terminology "aqueous medium" means a single phase liquid medium that contains more than a trace amount of water, typically, based on 100 pbw of the aqueous medium, more than 0.1 pbw water. Suitable aqueous media more typically comprise, based on 100 pbw of the aqueous medium, greater than about 5 pbw water, even more typically greater than 10 pbw water. In one embodiment, the aqueous emulsion comprises, based on 100 pbw of the aqueous medium, greater than 40 pbw water, more typically, greater than 50 pbw water ([0042]).
Wu et al. further teach a concentrated composition comprising 41.12 wt.% fungicide, 1.20 wt.% non-derivatized guar, 1.20 wt.% polyalkoxylated fatty acid ester (Surfactant A), 0.40 wt.% ethoxylated alcohol (Surfactant C), 3.30 wt.% rapeseed oil (Vegetable oil), 0.30 wt.% bentonite (Suspending agent II), and 45.84 wt.% water ([0254]; Table IV). The composition was made in two parts, parts A and B, mixed together to form the composition, wherein part A comprises 43.74 wt.% fungicide, 0.43 wt.% ethoxylated alcohol, and 48.77 wt.% water, and part B comprises 20 wt.% non-derivatized guar, 55 wt.% rapeseed oil, 20 wt.% polyalkoxylated fatty acid ester, and 5 wt.% bentonite ([0255]; Tables IV-A and IV-B).
Wu et al. also teach concentrated compositions comprising 4.4 wt.% nicosulfuron or 6.4 wt.% tebuconazole, 6.2 wt.% non-derivatized guar, 6.2 wt.% clay, 67.7 or 65.7 wt.% rapeseed oil, and 15.4 wt.% polyalkoxylated fatty acid ester (Table VII).
Wu et al. teach adjuvant concentrate compositions comprising plant oils, a guar gum, and a non-ionic surfactant within the instantly claimed concentration ranges, but they do not include water in the claimed range (i.e., Tables IV-B and VII).
However, Wu et al. teach that the final concentrated pesticide composition comprises water (Examples 3-8). Wu et al. further teach a method of mixing the pesticide with all or a portion of the emulsifier with water, mixing the guar and, optionally all or a portion of the emulsifier, with the vegetable oil, and combining the mixture of the pesticide and water with the mixture of guar and vegetable oil to form the composition (Claims 16-19). Wu et al. also teach that an aqueous liquid medium contains more than a trace amount of water, typically, based on 100 pbw of the aqueous medium, more than 0.1 pbw water, more typically greater than about 5 pbw water, even more typically greater than 10 pbw water, including greater than 40 pbw water, and more typically greater than 50 pbw water ([0042]). Wu et al. teach compositions comprising greater than 0 pbw, greater than or equal to about 10 pbw, or greater than or equal to about 30 pbw, of a liquid medium, which includes water ([0087], [0101], [0112], [0118], [0132]).
It would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare compositions according to Wu et al. wherein the concentrated compositions comprise water in an amount of greater than 0 pbw, preferably equal to or greater than about 10 pbw, and more preferably greater than or equal to about 30 pbw. A person of ordinary skill in the art would have been able to determine through routine experimentation the workable concentration of water to include in the compositions according to Wu et al. within the ranges taught.
The examiner respectfully points out the following from MPEP 2144.05: “[W]here 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.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 (“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969); Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed.Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997).
Regarding instant claims 1 and 16, Wu et al. teach that the compositions may further comprise pH adjusting agents ([0224]). Wu et al. do not explicitly disclose a pH adjusting agent selected from the group consisting of citric acid, acetic acid, sulfuric acid, hydrochloric acid, phosphoric acid, monosodium phosphate, monopotassium phosphate, disodium phosphate, dipotassium phosphate, and mixtures thereof. Wu et al. also do not explicitly disclose a pH in a range of 3.0 to 7.0, or 3.0 to 5.5.
McKnight et al. teach an agricultural adjuvant composition comprising (a) one or more first nonionic surfactants selected from the group consisting of fatty acid glycol ester surfactants, polyalkoxylated triglyceride surfactants, alkoxylated fatty alcohol surfactants, and sorbitan fatty acid ester surfactants, (b) at least one of: (b)(i) one or more second nonionic surfactants selected from the group consisting of polyalkoxylated alkylphenol surfactants, polyalkoxylated alkarylphenol surfactants, amine oxide surfactants, alkanolamide surfactants, glycoside surfactants, and ethylene/propylene block copolymers, and (b)(ii) one or more anionic components selected from the group consisting of anionic surfactants and polyanionic polymers, (c) optionally, a liquid medium comprising one or more fatty acid (C1-C3)alkyl esters, optionally, one or more water soluble deposition aid polymers, and (e) optionally, one or more thickening agents (Abstract; Claim 1).
McKnight et al. teach that the end use pesticide composition may optionally comprise one or more additional ingredients known in the art, including, for example, pH adjusting agents such as citric acid ([0342]).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare the adjuvant concentrate according to Wu et al. wherein the pH adjusting agent is citric acid, as reasonably taught by McKnight et al. Such would have been obvious because McKnight et al. also teach pesticide adjuvant compositions optionally comprising pH adjusting agents such as citric acid. A person of ordinary skill in the art would reasonably expect citric acid to be a suitable pH adjusting agent for use in Wu et al. since the compositions of Wu et al. and McKnight et al. are both drawn to pesticidal adjuvant compositions that may optionally comprise a pH adjusting agent.
Regarding the pH of a 5% aqueous solution of the adjuvant composition, Bissell et al. teach drift reduction adjuvant composition and agricultural sprays comprising water, guar gum, an emulsifier, an oil and a pesticide (Abstract; Claims 1-16). Bissell et al. teach that the pH of the spray is about 5 to about 7 ([0013], [0044]-[0045]; Claim 11).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to use citric acid as the pH adjusting agent and to include a sufficient amount to adjust the pH of an aqueous composition to about 5 to about 7, such as a pH of about 5 or about 5.5, as reasonably suggested by Bissell et al.
Regarding instant claim 2, Wu et al. teach that guar gum refers to non-derivatized guar, hydroxypropyl guar, carboxymethyl guar, hydroxypropyl trimethylammonium guar, hydroxypropyl lauryldimethylammonium guar, and hydroxypropyl stearyldimethylammonium guar ([0138]-[0142], [0150]).
Regarding instant claims 3-4, Wu et al. teach that in one embodiment, the composition of the present invention comprises one or more surfactants. As used herein the term “surfactant” means a compound that is capable of lowering the surface tension of water, more typically, a compound selected from one of five classes of compounds, that is, cationic surfactants, anionic surfactants, amphoteric surfactants, zwitterionic surfactants, and nonionic surfactants, as well as mixtures thereof ([0181]). Suitable anionic surfactants are known in the art, and include, for example, alkaryl sulfonate surfactants, such as sodium dodecylbenzene sulfonate, alkyl sulfosuccinate surfactants, such as disodium lauryl sulfosuccinate, and alkyl ether sulfosuccinate surfactants, such as disodium laureth sulfosuccinate ([0183], [0205]).
Regarding instant claims 5-6, Wu et al. teach compositions comprising bentonite and water. It is noted that the instant specification teaches that water is an activator of phyllosilicate (pg. 15).
It would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to determine through routine experimentation the optimal pH range for the compositions according to Wu et al.
Regarding instant claims 9 and 18, Wu et al. teach composition exhibiting: (a) a viscosity of greater than or equal to 5 Pa·s at a shear rate of less than 0.01 s−1, and (b) a viscosity of less than 5 Pa·s at a shear rate of greater than 10 s−1 ([0008]). In one embodiment, the composition of the present invention exhibits a viscosity of less than 10 Pa·s, more typically from about 0.1 to less than 10 Pa·s, and even more typically from about 0.1 to less than 5 Pa·s, at a shear rate of greater than or equal to 10 s−1 ([0062]-[0072]).
Regarding instant claims 10-11, Wu et al. teach compositions comprising greater than 0 to about 70 pbw of a pesticide, wherein the pesticides include herbicides, insecticides, fungicides, miticides, and plant growth regulators ([0008], [0044], [0046], [0053]).
Regarding instant claims 12-15, Wu et al. teach mixing the pesticide with the adjuvant composition (Examples 3-8). Regarding the step of mixing the pesticide with a pre-mixture of the adjuvant concentrate composition, Wu et al. teach a method of mixing the pesticide with all or a portion of the emulsifier with water, mixing the guar and, optionally all or a portion of the emulsifier, with the vegetable oil, and combining the mixture of the pesticide and water with the mixture of guar and vegetable oil to form the composition (Claims 16-19).
It would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare an adjuvant composition followed by addition of the pesticide according to Wu et al. (Examples 3-8). Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. See MPEP 2144.04(IV)(C).
Regarding instant claim 17, Wu et al. teach that the composition resists sedimentation or separation under low shear stress storage conditions ([0068], [0221]-[0223], [0243]).
Response to Arguments
Applicant's arguments filed 26 December 2025 have been fully considered but they are not persuasive. Applicant argues that Wu does not disclose, teach, or suggest any of the pH regulators of amended claim 1 and therefore cannot render the claimed pH regulators obvious. Further, Wu does not teach any pH for the compositions, thus Wu offers no guidance on a pH which is useful or advantageous, or even a non-desirable pH.
The examiner respectfully argues that Wu et al. teach that the compositions may further comprise pH adjusting agents ([0224]). McKnight et al. teach agricultural adjuvant compositions comprising a pH adjusting agent, such as citric acid ([0342]). Bissell et al. teach drift reduction adjuvant compositions and agricultural sprays comprising water, guar gum, an emulsifier, an oil and a pesticide, wherein the pH of the spray is about 5 to about 7 (Abstract; [0013], [0044]-[0045]; Claim 11). It would have been obvious to use known pH adjusting agents, such as citric acid, in the compositions according to Wu et al., wherein the pH of the aqueous composition is adjusted to about 5 to about 7, as suggested by McKnight et al. and Bissell et al.
Applicant further argues that Wu teaches broadly that the compositions may comprise the water in amounts from only trace amounts of water to 99+% of water. Wu does not teach non-aqueous formulations comprising large (i.e. more than trace) amounts of water in combination with large amounts of a non-aqueous liquid medium. Wu briefly mentions that the compositions may be emulsion or reverse emulsions, but is largely directed to aqueous compositions which comprise some amount of a non-aqueous phase. Applicant further argues that it is clear when considering the whole of Wu’s teachings, that the compositions comprising a substantial amount of non-aqueous solvent are intended to minimize the amount of water present. Thus, one skilled in the art would not have found any teaching in Wu which would render the claimed compositions obvious.
The examiner respectfully argues that Wu et al. teach that the liquid medium may be a non-aqueous liquid medium or an aqueous liquid medium. The non-aqueous liquid medium comprises vegetable oils and alkylated esters of carboxylic acids, and the aqueous liquid medium comprises water. Wu et al. teach that the compositions comprise, based on 100 pbw of the composition, greater than 30 pbw of a liquid medium ([0087]). Wu et al. teach embodiments wherein the liquid medium is a mixture of an aqueous liquid medium and a non-aqueous liquid medium ([0099], [0208]). Wu et al. also teach compositions comprising, based on 100 pbw of the composition, greater than 0 pbw and up to 30 pbw water ([0101], [0112], [0118]).
Therefore, a person of ordinary skill in the art would have been motivated to prepare compositions according to Wu et al. comprising a combination of aqueous liquid medium and non-aqueous liquid medium. A person of ordinary skill in the art would have been able to determine through routine experimentation the optimum or workable ranges of aqueous liquid medium and non-aqueous liquid medium for use in combination in the compositions according to Wu et al.
Applicant further argues that while Wu teaches that in some embodiments the amount of water may be "from greater than 0 pbw, more typically greater than or equal to about 10 pbw, even more typically greater than or equal to about 30 pbw" there is nothing in this teaching to readily guide a skilled artisan to the claimed range of 2% to 30% by weight of water.
The examiner respectfully points out the following from MPEP 2144.05: “[W]here 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.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 (“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969); Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed.Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997).
Applicant asserts that the claimed compositions exhibit unexpectedly superior stability over time — evidenced by the top oil separation — in comparison to compositions which comprise amounts of water and liquid medium outside of the claimed ranges.
The examiner respectfully argues that Wu et al. teach that the composition resists sedimentation or separation under low shear stress storage conditions ([0068], [0221]-[0223], [0243]). Therefore, the compositions according to Wu et al. achieve stability over time, rendering the instant claims obvious.
Applicant argues that there is nothing in Wu to suggest that the stability for up to one week extends further than the one week time period for a temperature of 54 °C. Wu reports data for only up to the one week time period and is silent on any property of the compositions in the period between one week and two weeks. Wu, therefore, cannot reasonably teach the stability - in particular, the top oil separation - of a composition after two weeks at 54 °C.
The examiner respectfully argues that Applicant has not provided evidence to show that the compositions according to Wu et al. are not stable, in particular, the top oil separation, after two weeks at 54 °C. Wu et al. teach that the composition resists sedimentation or separation under low shear stress storage conditions ([0068], [0221]-[0223], [0243]). Wu et al. teach that the composition of the present invention exhibits good storage stability and a quiescent sample of the composition shows no evidence, by visual inspection, of gravity driven separation within a given time, such as, for example, one week, more typically, one month, even more typically 3 months, under given storage conditions, such as, for example, at room temperature ([0222]). In one embodiment, the composition of the present invention exhibits good storage stability and a quiescent sample of the composition shows no evidence, by visual inspection, of gravity driven separation within a given time, such as, for example, 24 hours, more typically, four days, even more typically, one week, under accelerated aging conditions at an elevated storage temperature of up to, for example, 54° C, more typically, 45° C ([0223]). A person of ordinary skill in the art would have a reasonable expectation that the compositions according to Wu et al. are storage stable at room temperature for at least 3 months, and at 54 °C for at least one week. A person of ordinary skill in the art would have been able to determine through routine experimentation whether the compositions according to Wu et al. are stable for longer periods of time, such as at least two weeks at 54 °C.
Further, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nathan W Schlientz whose telephone number is (571)272-9924. The examiner can normally be reached 10:00 AM to 6:00 PM, Monday through Friday.
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/N.W.S/Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616
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