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 .
Applicant’s amendment filed 9/2/2025 has been entered. Claim 16 was cancelled. Claims 17, 20 and 28 were amended. Claims 1-3, 5, 6, 10, 13, 14, 17, 20, 21, 24-26, 28, 29 and 36-38 are pending.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 9/27/2022, 3/6/2025 and 4/18/2025 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements have been considered by the examiner.
Election/Restrictions
Applicant’s election without traverse of the fungicide thiram, the nitrification inhibitor nitrapyrin and the polyanion adipic acid in the reply filed on 9/2/2025 is acknowledged. The Examiner is broadened the search to encompass all polyanion species.
Claims 2, 3 and 6 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species of fungicide, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 9/2/2025.
Claims 1, 5, 10, 13, 14, 17, 20, 21, 24-26, 28, 29 and 36-38 are under examination.
Claim Rejections - 35 USC § 112
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 1, 5, 10, 13, 14, 17, 20, 21, 24-26, 28, 29 and 36-38 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1, 5 and 10 recite various fungicides selected from “amide-based fungicides, dithiocarbamate-based fungicides, oxazole-containing fungicides and phosphoric acid-derived fungicides” as well as nitrification inhibitors selected from “ S-containing compounds, cyano-containing compounds and N-heterocyclic-containing compounds” which is indefinite. The metes and bounds of what is encompassed by the terms “amide-based fungicides, dithiocarbamate-based fungicides, oxazole-containing fungicides and phosphoric acid-derived fungicides, S-containing compounds, cyano-containing compounds and N-heterocyclic-containing compounds” cannot be deciphered. The use of the terms "-based” and “-containing" to describe the compounds renders the scope of the claim(s) unascertainable. See MPEP § 2173.05(d). Claims 13, 14, 17, 20, 21, 24-26, 28, 29 and 36-38 are rejected for depending on claim 1.
Claim 26 contains the trademarks/trade names Agnique® AMD 810, Agnique® AMD 31, Rhodiasolv® ADMA 10, Rhodiasolv® ADMA 810 and/or Rhodiasolv® Polarclean. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe various organic solvents and, accordingly, the identification/description is indefinite.
Claim 36 recites an agricultural product selected from fertilizer, agriculturally active compounds, seed, urease inhibitors, pesticides, herbicides, insecticides, nitrification inhibitors, and combinations thereof. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 36 recites the broad recitation agriculturally active compounds, and the claim also recites fertilizer, urease inhibitors, pesticides, herbicides, insecticides, nitrification inhibitors which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because the metes and bounds of the term “agriculturally active compounds” is not distinguishable from the fertilizer, urease inhibitors, pesticides, herbicides, insecticides and nitrification inhibitors.
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 36 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 36 recites an agricultural composition comprising an agricultural product selected from nitrification inhibitors and the composition of claim 1 which already includes nitrification inhibitors and combinations thereof. Therefore, when the agricultural product is a nitrification inhibitor claim 36 fails to properly further limit the scope of claim 1. 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.
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 1, 5, 10, 13, 14, 17, 20, 21, 24-26, 28, 29 and 36-38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,195,410 (herein ‘410) in view of Gewehr (WO 2011/032904; international filing date September 13, 2010)). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims require thiram, whereas ‘410 only teaches nitrapyrin complex comprising nitrapyrin complexed with a polyanion which is a non-polymeric polyanion and/or a polyanionic polymer. With respect to claim 38, ‘410 does not teach a method of inhibiting nitrification in the soil comprising contacting an effective amount of a composition comprising nitrapyrin, thiram and polyanion with the soil. With respect to claim 29, ‘410 does not teach 0.01-30% nitrification inhibitor. It is for this reason that Gewehr is joined.
Gewehr teach methods of reducing nitrous oxide emission (nitrification) from soils comprising treating a plant growing on the soil with mixtures comprising at least one fungicide A selected from thiram (A11) (page 10, line 29; claim 1), at least one ammonium or urea fertilizer B and at least one nitrification inhibitor C selected from 2-chloro-6-(trichloromethyl)-pyridine (nitrapyrin) (page 12, lines 14-40; claim 8). The compounds are combined with auxiliaries customary in agrochemical compositions including organic solvents such as mineral oil fractions of medium to high boiling point, oils of vegetable or animal origin, hydrocarbons, alcohols, ketones such as fatty acid dimethylamides (such as Agnique AMD 810, etc.) and polar solvents; carriers, surfactants (emulsifiers, wetting agents), anti-foaming agents and dyes (page 23, line 9 through page 24, line 36). The concentrations of the active substances range from 0.01-95% of the agricultural formulations, preferably 0.0001-10% of the ready-to-use preparations (page 26, lines 15-18; page 27, lines 10-13). The nitrous oxide emission from soils is reduced by applying mixtures comprising compounds B and C (page 13, lines 1-3).
Therefore, it would have been prima facie obvious to combine the teaches of ‘410 and Gewehr to formulate mixtures comprising nitrapyrin complexed to polyanion and thiram and applying them to soil to reduce nitrous oxide emission because Gewehr teach nitrous oxide emission form soils is reduced by the application mixtures of thiram and nitrapyrin.
Claims 1, 5, 10, 13, 14, 20, 21 and 36-38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 10,059,636 (herein ‘636) in view of Gewehr (WO 2011/032904; international filing date September 13, 2010). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims require nitrapyrin and thiram, whereas ‘636 only teaches a product comprising a pesticide selected from herbicides, insecticides, fungicides and nematocides and a polymer wherein the polymer encompasses the polyanionic polymer comprising maleic, itaconic and sulfonate in at least 4 repeat units. With respect to claim 1, ‘636 does not specify the pesticides include thiram and nitrapyrin. With respect to claim 38, ‘636 does not teach a method of inhibiting nitrification in the soil comprising contacting an effective amount of a composition comprising nitrapyrin, thiram and polyanion with the soil. It is for this reason that Gewehr is joined.
Gewehr teach methods of reducing nitrous oxide emission (nitrification) from soils comprising treating a plant growing on the soil with mixtures comprising at least one fungicide A selected from thiram (A11) (page 10, line 29; claim 1), at least one ammonium or urea fertilizer B and at least one nitrification inhibitor C selected from 2-chloro-6-(trichloromethyl)-pyridine (nitrapyrin) (page 12, lines 14-40; claim 8). The compounds are combined with auxiliaries customary in agrochemical compositions including organic solvents such as mineral oil fractions of medium to high boiling point, oils of vegetable or animal origin, hydrocarbons, alcohols, ketones such as fatty acid dimethylamides (such as Agnique AMD 810, etc.) and polar solvents; carriers, surfactants (emulsifiers, wetting agents), anti-foaming agents and dyes (page 23, line 9 through page 24, line 36). The concentrations of the active substances range from 0.01-95% of the agricultural formulations, preferably 0.0001-10% of the ready-to-use preparations (page 26, lines 15-18; page 27, lines 10-13). The nitrous oxide emission from soils is reduced by applying mixtures comprising compounds B and C (page 13, lines 1-3).
Therefore, it would have been prima facie obvious to combine the teaches of ‘636 and Gewehr to formulate mixtures comprising thiram, nitrapyrin and polyanionic polymers and applying them to soil to reduce nitrous oxide emission because Gewehr teach nitrous oxide emission form soils is reduced by the application mixtures of thiram and nitrapyrin.
Claims 1, 5, 10, 13, 14, 20, 21 and 36-38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 12-16 of U.S. Patent No. 10,519,070 (herein ‘070) in view of Gewehr (WO 2011/032904; international filing date September 13, 2010). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims require nitrapyrin and thiram, whereas ‘636 only teaches a composition comprising fertilizer, preferably a urea fertilizer and a composition comprising humic acid and polyanionic polymer comprising maleic and itaconic repeating units. With respect to claim 1, ‘070 does not specify the pesticides include thiram and nitrapyrin. With respect to claim 38, ‘070 does not teach a method of inhibiting nitrification in the soil comprising contacting an effective amount of a composition comprising nitrapyrin, thiram and polyanion with the soil. It is for this reason that Gewehr is joined.
Gewehr teach methods of reducing nitrous oxide emission (nitrification) from soils comprising treating a plant growing on the soil with mixtures comprising at least one fungicide A selected from thiram (A11) (page 10, line 29; claim 1), at least one ammonium or urea fertilizer B and at least one nitrification inhibitor C selected from 2-chloro-6-(trichloromethyl)-pyridine (nitrapyrin) (page 12, lines 14-40; claim 8). The compounds are combined with auxiliaries customary in agrochemical compositions including organic solvents such as mineral oil fractions of medium to high boiling point, oils of vegetable or animal origin, hydrocarbons, alcohols, ketones such as fatty acid dimethylamides (such as Agnique AMD 810, etc.) and polar solvents; carriers, surfactants (emulsifiers, wetting agents), anti-foaming agents and dyes (page 23, line 9 through page 24, line 36). The concentrations of the active substances range from 0.01-95% of the agricultural formulations, preferably 0.0001-10% of the ready-to-use preparations (page 26, lines 15-18; page 27, lines 10-13). The nitrous oxide emission from soils is reduced by applying mixtures comprising compounds B and C (page 13, lines 1-3).
Therefore, it would have been prima facie obvious to combine the teaches of ‘070 and Gewehr to formulate mixtures comprising thiram, a urea fertilizer, nitrapyrin and polyanionic polymers and applying them to soil to reduce nitrous oxide emission because Gewehr teach nitrous oxide emission form soils is reduced by the application mixtures of thiram and nitrapyrin.
Claims 1, 5, 10, 13, 14, 20, 21, 25, 26, 28 and 36-38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 10,822,487 (herein ‘487) in view of Gewehr (WO 2011/032904; international filing date September 13, 2010)). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims require a polyanion, nitrapyrin and thiram, whereas ‘487 teaches a polyanionic polymer comprising repeating groups of maleic, itaconic and sulfonates. With respect to claim 38, ‘487 does not teach a method of inhibiting nitrification in the soil comprising contacting an effective amount of a composition comprising nitrapyrin, thiram and polyanion with the soil. It is for this reason that Gewehr is joined.
Gewehr teach methods of reducing nitrous oxide emission (nitrification) from soils comprising treating a plant growing on the soil with mixtures comprising at least one fungicide A selected from thiram (A11) (page 10, line 29; claim 1), at least one ammonium or urea fertilizer B and at least one nitrification inhibitor C selected from 2-chloro-6-(trichloromethyl)-pyridine (nitrapyrin) (page 12, lines 14-40; claim 8). The compounds are combined with auxiliaries customary in agrochemical compositions including organic solvents such as mineral oil fractions of medium to high boiling point, oils of vegetable or animal origin, hydrocarbons, alcohols, ketones such as fatty acid dimethylamides (such as Agnique AMD 810, etc.) and polar solvents; carriers, surfactants (emulsifiers, wetting agents), anti-foaming agents and dyes (page 23, line 9 through page 24, line 36). The concentrations of the active substances range from 0.01-95% of the agricultural formulations, preferably 0.0001-10% of the ready-to-use preparations (page 26, lines 15-18; page 27, lines 10-13). The nitrous oxide emission from soils is reduced by applying mixtures comprising compounds B and C (page 13, lines 1-3).
Therefore, it would have been prima facie obvious to combine the teaches of ‘487 and Gewehr to formulate mixtures comprising polyanionic polymers nitrapyrin and thiram and applying them to soil to reduce nitrous oxide emission because Gewehr teach nitrous oxide emission from soils is reduced by the application mixtures of thiram and nitrapyrin.
Claims 1, 5, 10, 13, 14, 20, 21, 25, 26, 28 and 36-38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 of U.S. Patent No. 10,377,680 (herein ‘680) in view of Gewehr (WO 2011/032904; international filing date September 13, 2010)). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims require a polyanion, nitrapyrin and thiram, whereas ‘680 teaches a polyanionic tetrapolymer comprising repeating groups of maleic, itaconic and sulfonates. With respect to claim 38, ‘680 does not teach a method of inhibiting nitrification in the soil comprising contacting an effective amount of a composition comprising nitrapyrin, thiram and polyanion with the soil. It is for this reason that Gewehr is joined.
Gewehr teach methods of reducing nitrous oxide emission (nitrification) from soils comprising treating a plant growing on the soil with mixtures comprising at least one fungicide A selected from thiram (A11) (page 10, line 29; claim 1), at least one ammonium or urea fertilizer B and at least one nitrification inhibitor C selected from 2-chloro-6-(trichloromethyl)-pyridine (nitrapyrin) (page 12, lines 14-40; claim 8). The compounds are combined with auxiliaries customary in agrochemical compositions including organic solvents such as mineral oil fractions of medium to high boiling point, oils of vegetable or animal origin, hydrocarbons, alcohols, ketones such as fatty acid dimethylamides (such as Agnique AMD 810, etc.) and polar solvents; carriers, surfactants (emulsifiers, wetting agents), anti-foaming agents and dyes (page 23, line 9 through page 24, line 36). The concentrations of the active substances range from 0.01-95% of the agricultural formulations, preferably 0.0001-10% of the ready-to-use preparations (page 26, lines 15-18; page 27, lines 10-13). The nitrous oxide emission from soils is reduced by applying mixtures comprising compounds B and C (page 13, lines 1-3).
Therefore, it would have been prima facie obvious to combine the teaches of ‘680 and Gewehr to formulate mixtures comprising polyanionic tetrapolymers, nitrapyrin and thiram and applying them to soil to reduce nitrous oxide emission because Gewehr teach nitrous oxide emission from soils is reduced by the application mixtures of thiram and nitrapyrin.
Claims 1, 5, 10, 13, 14, 20, 21, 25, 26, 28 and 36-38 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. 10,065,896 (herein ‘896) in view of Gewehr (WO 2011/032904; international filing date September 13, 2010)). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims require a polyanion, nitrapyrin and thiram, whereas ‘896 teaches agricultural seed coated with anionic polymer comprising repeating groups of maleic, itaconic and sulfonates. With respect to claim 38, ‘896 does not teach a method of inhibiting nitrification in the soil comprising contacting an effective amount of a composition comprising nitrapyrin, thiram and polyanion with the soil. It is for this reason that Gewehr is joined.
Gewehr teach methods of reducing nitrous oxide emission (nitrification) from soils comprising treating a plant growing on the soil with mixtures comprising at least one fungicide A selected from thiram (A11) (page 10, line 29; claim 1), at least one ammonium or urea fertilizer B and at least one nitrification inhibitor C selected from 2-chloro-6-(trichloromethyl)-pyridine (nitrapyrin) (page 12, lines 14-40; claim 8). The compounds are combined with auxiliaries customary in agrochemical compositions including organic solvents such as mineral oil fractions of medium to high boiling point, oils of vegetable or animal origin, hydrocarbons, alcohols, ketones such as fatty acid dimethylamides (such as Agnique AMD 810, etc.) and polar solvents; carriers, surfactants (emulsifiers, wetting agents), anti-foaming agents and dyes (page 23, line 9 through page 24, line 36). The concentrations of the active substances range from 0.01-95% of the agricultural formulations, preferably 0.0001-10% of the ready-to-use preparations (page 26, lines 15-18; page 27, lines 10-13). The nitrous oxide emission from soils is reduced by applying mixtures comprising compounds B and C (page 13, lines 1-3).
Therefore, it would have been prima facie obvious to combine the teaches of ‘896 and Gewehr to formulate mixtures comprising polyanionic polymers comprising repeating groups of maleic, itaconic and sulfonates, nitrapyrin and thiram and applying them to soil to reduce nitrous oxide emission because Gewehr teach nitrous oxide emission form soils is reduced by the application mixtures of thiram and nitrapyrin.
Claims 1, 5, 10, 13, 14, 17, 20, 21, 24-26, 28, 29 and 36-38 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 5, 11, 13-18, 20, 21, 23, 25, 26 and 31 of copending Application No. 17/801,949 (herein ‘949). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims require a polyanion, nitrapyrin and thiram, whereas ‘949 teaches nitrapyrin-organic acid ionic mixture comprising nitrapyrin and organic acid selected from adipic acid. ‘949 does not teach a thiram. It is for this reason that Gewehr is joined.
Gewehr teach methods of reducing nitrous oxide emission (nitrification) from soils comprising treating a plant growing on the soil with mixtures comprising at least one fungicide A selected from thiram (A11) (page 10, line 29; claim 1), at least one ammonium or urea fertilizer B and at least one nitrification inhibitor C selected from 2-chloro-6-(trichloromethyl)-pyridine (nitrapyrin) (page 12, lines 14-40; claim 8). The compounds are combined with auxiliaries customary in agrochemical compositions including organic solvents such as mineral oil fractions of medium to high boiling point, oils of vegetable or animal origin, hydrocarbons, alcohols, ketones such as fatty acid dimethylamides (such as Agnique AMD 810, etc.) and polar solvents; carriers, surfactants (emulsifiers, wetting agents), anti-foaming agents and dyes (page 23, line 9 through page 24, line 36). The concentrations of the active substances range from 0.01-95% of the agricultural formulations, preferably 0.0001-10% of the ready-to-use preparations (page 26, lines 15-18; page 27, lines 10-13). The nitrous oxide emission from soils is reduced by applying mixtures comprising compounds B and C (page 13, lines 1-3).
Therefore, it would have been prima facie obvious to combine the teaches of ‘949 and Gewehr to formulate mixtures comprising adipic acid, nitrapyrin and thiram and applying them to soil to reduce nitrous oxide emission because Gewehr teach nitrous oxide emission form soils is reduced by the application mixtures of thiram and nitrapyrin.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
Claims 1, 5, 10, 13, 14, 20, 21, 25, 26, 28, 29 and 36-38 are rejected under 35 U.S.C. 103 as being unpatentable over Gewehr (WO 2011/032904; international filing date September 13, 2010) in view Sanders et al. (WO 2015/031521; international filing date August 24, 2014).
Applicant claims a composition comprising thiram, nitrapyrin and a polyanion (claim 1).
Applicant claims an agricultural composition comprising an agricultural product selected from a fertilizer, agriculturally active compounds, seed, urease inhibitors, pesticides, herbicides, insecticides, nitrification inhibitors, and combinations thereof; and the composition of claim 1 (claim 36).
Applicant claims a formulation comprising a co-formulant selected solvents, surface active ingredients, carriers, wetting agents, emulsifiers, anti-foaming agents, preservatives and dyes; and the composition of claim 1 (claim 37).
Applicant claims a method of inhibiting nitrification in a soil comprising contacting an effective amount of the composition of claim 1 with soil (claim 38).
With respect to claims 1, 5, 10, 13, 14, 25, 26, 36 and 37, Gewehr teach methods of reducing nitrous oxide emission (nitrification) from soils comprising treating a plant growing on the soil with mixtures comprising at least one fungicide A selected from thiram (A11) (page 10, line 29; claim 1), at least one ammonium or urea fertilizer B and at least one nitrification inhibitor C selected from 2-chloro-6-(trichloromethyl)-pyridine (nitrapyrin) (page 12, lines 14-40; claim 8). The compounds are combined with auxiliaries customary in agrochemical compositions including organic solvents such as mineral oil fractions of medium to high boiling point, oils of vegetable or animal origin, hydrocarbons, alcohols, ketones such as fatty acid dimethylamides (such as Agnique AMD 810, etc.) and polar solvents; carriers, surfactants (emulsifiers, wetting agents), anti-foaming agents and dyes (page 23, line 9 through page 24, line 36). The concentrations of the active substances range from 0.01-95% of the agricultural formulations, preferably 0.0001-10% of the ready-to-use preparations (page 26, lines 15-18; page 27, lines 10-13). The nitrous oxide emission from soils is reduced by applying mixtures comprising compounds B and C (page 13, lines 1-3).
With respect to claim 38, Gewehr teach methods of reducing nitrification from soils by treating plants growing in the soil and/or the locus where the plant grows (claim 1).
With respect to claims 1, 20, 21, 24, 28 and 29 Gewehr fails to specify a polyanion, specifically a polyanionic polymer having at least one of each type B, and type C repeat units, and optionally type G repeat units, preferably a polyanionic polymer having 45 mole percent maleic repeat units, 50 mole percent itaconic, 4 mole percent methallylsulfonate and 1 mole percent allylsulfonate repeat units. It is for this reason that Sanders et al. is joined.
Saunders et al. teach polyanionic polymers comprising repeating maleic, itaconic and sulfonate unit (abstract). The polymers comprise at least four repeat units including type B, type C and type G repeat units, wherein the preferred polymers have one type B (35-55 mole percent maleic acid), one type C (20-44 mole percent itaconic acid), and two different type G repeat units (1-25 mole percent methallylsulfonic acid and allylsulfonic acid) (page 4, lines 3-14; limitation of claims 20, 21 and 28). The polymers may be used alone or in combinations with another anionic polymer including maleic and itaconic repeat units (page 4, lines 30-31). The polymers are combined with fertilizers, preferably solid urea and applied to soil (page 8, lines 14-32). The polymers are also combined with pesticides selected from herbicides, insecticides, fungicides and nematocides (page 9, line 1 through page 10, line 18). The polymer in the pesticide compositions range from 0.04-10% by weight of the composition (page 60, lines 5-9). The pesticides are preferably selected from dithiocarbamates (page 69, lines 26-29). The polymers serve as nitrification inhibitors (page 73, lines 18-26).
With respect to claim 29, Gewehr teach the active substances range from 0.01-95% of the agricultural formulations and formulations comprise 70-90% organic solvent in suspension, gel and ulv solutions (page 25, line 20 through page 26, line 19) and Sanders teach the polyanioic polymer in the pesticide compositions range from 0.04-10% by weight of the composition (page 60, lines 5-9).
Both Gewehr and Sanders teach agricultural formulations comprising nitrification inhibitors and dithiocarbamate fungicides. Therefore, it would have been prima facie obvious to combine the teaches of Gewehr and Sanders et al. to include 0.04-10% by weight polyanionic polymers. One of ordinary skill in the art would have been motivated to combine the teachings of Gewehr and Sander to include optimizing the formulations to included 0.01-45% thiram, 0.01-30% nitrapyrin, 10-99.97% organic solvent and 0.01-15% polyanionic polymer by routine optimization.
It would have been prima facie obvious to combine the teaches of Gewehr and Sanders et al. to include polyanionic polymers comprising 35-55 mole percent maleic acid, 20-44 mole percent itaconic acid and 1-25 mole percent methallylsulfonic acid and allylsulfonic acid and applying them to soil to reduce nitrous oxide emission. One of ordinary skill in the art would have been motivated to combine the teachings of Gewehr and Sander before the time of filing because Sanders teach that polyanionic polymers comprising 35-55 mole percent maleic acid, 20-44 mole percent itaconic acid and 1-25 mole percent methallylsulfonic acid and allylsulfonic acid act as nitrification inhibitors and are preferably combined with dithiocarbamates prior to being applied to soil.
Conclusion
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 at 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
DANIELLE D. JOHNSON
Examiner
Art Unit 1617
/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611