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 .
This Office Action is in response to Applicant’s amendment filed August 1, 2025. Claims 1 and 5-14 are pending in the application. Claims 1, 5, and 12 have been amended. Claims 13-14 are newly added. Claims 8, 9, 10, 11, 12 and 14 are withdrawn to a non-elected invention. Claim 1, 5-7, and 13 will presently be examined to the extent they read on the elected subject matter of record.
Status of the Claims
The rejection of claim 5 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or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention is withdrawn due to Applicant’s amendment to the claims.
The rejection of claims 1 and 6 under 35 U.S.C. 103 as being obvious over Liu et al. (CN 107853320, Translation) in view of CN107156120 is withdrawn due to Applicant’s amendment to the claims.
Claims 1 and 5-7 are rejected under 35 U.S.C. 103 as being obvious over Ma et al. Publication (2019, International Journal of Analytical Chemistry, Ma et al.) in view of CN107156120 is withdrawn due to Applicant’s amendment to the claims.
New Rejections Necessitated by Amendment filed August 1, 2025
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.
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.
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, 5, and 7 are rejected under 35 U.S.C. 103 as being obvious over Ma et al. Publication (2019, International Journal of Analytical Chemistry, Ma et al.) in view of CN107156120 (English Translation from Espacenet) and The Wall Publication (2002, New Mexico State University, Wall et al.).
Applicant’s Invention
Applicant claims a method of defoliating a pepper plant comprising applying at least one polyether compound shown in Formula I or a salt thereof as an active constituent therefor as a defoliant or a defoliation synergist, R1O(CH2CHOH)nR2, as currently claimed, and the concentration of the R1O(CH2CHOH)nR2 or its salt is 0.2-0.8 wt.%.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Ma et al. teach defoliants tribufos, diuron, thidiazuron, and ethephon are chemically stable and can persist for long periods in soil and water.
Regarding claim 1, Ma et al. teach defoliant tribufos, diuron, thidiazuron and ethephon were supplied. A fatty alcohol polyoxyethylene ether surfactant JFC-6 was from Hangzhou Mike Chemical Instrument Co., Ltd. (page 2, 2. Methods, paragraph 2.1).
Regarding claims 1 and 5, Ma et al. teach cotton was planted in sandy loam soil. When about 70% of the cotton bolls opened, the opened bolls were marked before defoliant application. The defoliant tribufos, diuron, thidiazuron and ethephon formulations were applied on cotton at normal rates (page 2, 2. Methods, cols. 1-2, paragraph 2.2).
Regarding claim 7, Ma et al. teach they were usually applied at about 2 weeks before the fiber harvest (page 1, Introduction, col. 1, 1st full paragraph-page 2, bridge).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Ma et al. do not specifically disclose the polyether compound of formula I R1O(CH2CHOH)nR2, wherein n is 5, the plant is a pepper plant, or the concentration is 0.2-0.8% or 0.5-0.8%. It is for this reason CN107156120 and the Wall Publication are added as secondary references.
CN107156120 teaches the composite dispersant is at least two of Tween series, Span series, isomeric trityl polyoxyethylene ether series, laureth-10 series (page 2, paragraph 2).
CN107156120 teaches the lauryl alcohol polyoxyethylene ether series is lauryl alcohol polyoxyethylene ether AEO-3, lauryl alcohol polyoxyethylene ether AEO-4, lauryl alcohol polyoxyethylene ether AEO-5, lauryl alcohol polyoxyethylene ether AEO-6, Lauryl alcohol polyoxyethylene ether AEO-7, lauryl alcohol polyoxyethylene ether AEO-9, and lauryl alcohol polyoxyethylene ether AEO-10. The present invention through the use of lauryl alcohol polyether series dispersants, the dispersion effect is good (page 2, paragraph 6).
Wall et al. teach during the 2000 season a large-scale trial to investigate the effect of an ethylene-releasing compound (ethephon) and machine harvest on yield, harvest efficiency and quality of four red chile cultivars grown in the Southwest and dehydrated for paprika or mild red chile powder (page 3, of 12, Yield and quality of machine-harvested red chile pepper). Wall et al. teach a single ripening and defoliating treatment of 1.5 pt/acre ethephon plus 8 lbs/acre sodium chloride was applied 18 days before harvest (page 4/12, Materials and methods, paragraph 3).
Finding a Prima Facie Obviousness Rationale and Motivation
(MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Ma et al. and CN107156120 and use a fatty alcohol polyoxyethylene ether, wherein n is 5. Ma et al. teach cotton was planted in sandy loam soil. When about 70% of the cotton bolls opened, the opened bolls were marked before defoliant application. The defoliant tribufos, diuron, thidiazuron and ethephon formulations were applied on cotton at normal rates. Ma et al. teach that fatty alcohol polyoxyethylene ether surfactant JFC-6 is added to the defoliants. One of ordinary skill in the art would have been motivated to use a fatty alcohol polyoxyethylene ether wherein n is 5 (AEO-5) based on the teaching of CN107156120. CN107156120 teaches a pesticidal composition wherein the composition comprises a lauryl alcohol polyoxyethylene ether series is lauryl alcohol polyoxyethylene ether AEO-3, lauryl alcohol polyoxyethylene ether AEO-4, lauryl alcohol polyoxyethylene ether AEO-5, lauryl alcohol polyoxyethylene ether AEO-6, Lauryl alcohol polyoxyethylene ether AEO-7, lauryl alcohol polyoxyethylene ether AEO-9, and lauryl alcohol polyoxyethylene ether AEO-10. Based on this teaching one of ordinary skill in the art would have been motivated to substitute one fatty alcohol polyoxyethylene ether for another. It would have been obvious to one of ordinary skill in the art to substitute one fatty alcohol polyoxyethylene ether, AEO-5 for another, JFC-6, because CN107156120 teaches that lauryl alcohol polyoxyethylene ethers are functional equivalent lauryl alcohol polyoxyethylene ethers in agricultural compositions, without evidence to the contrary.
One of ordinary skill in the art would have been motivated to combine the teachings of Ma et al., CN107156120, and the Wall Publication and use the polyether compound and ethephon as a defoliant in pepper plants. Ma et al. teach that ethephon and a polyoxyethylene ether are used to defoliate cotton plants. The Wall Publication teaches that ethephon is used as a defoliant in pepper plants. It would have been obvious to one of ordinary skill in the art that if the same compound, ethephon, is known to be used as a defoliant in cotton and pepper, that the composition taught by Ma et al., as modified by CN107156120, would also be an effective defoliant of pepper plants, without evidence to the contrary.
Regarding the concentration of the polyether compound of Formula I, one of ordinary skill in the art would have been motivated to use experimentation and optimization to determine the concentration of the polyether compound of Formula I to be used in the composition. One of ordinary skill in the art would have been motivated to try different amounts of the polyether compound of Formula I to formulate an effective defoliant. The adjustment of particular conventional working conditions is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Response to Arguments
Applicant's arguments filed August 1, 2025 have been fully considered but they are not persuasive. Applicant argues that neither Liu, Ma, nor CN ‘120 satisfies the above emphasized feature A (pepper plant). Applicant further argues that CN ‘120 is not drawn to a particular crop and that the polyether compound shown in Formula I is only one of a large group of insecticides disclosed for CN ‘120’s purposes and that there is no particular reason to choose an insecticide of Formula I by one of ordinary skill in the art. In response to Applicant’s argument, based on the new rejection of record, one of ordinary skill in the art would have been motivated to combine the teachings of Ma et al., CN107156120, and the Wall Publication and use the polyether compound and ethephon as a defoliant in pepper plants. Ma et al. teach that ethephon and a polyoxyethylene ether are used to defoliate cotton plants. The Wall Publication teaches that ethephon is used as a defoliant in pepper plants. It would have been obvious to one of ordinary skill in the art that if the same compound, ethephon, is known to be used as a defoliant in cotton and pepper, that the composition taught by Ma et al., as modified by CN107156120, would also be an effective defoliant of pepper plants, without evidence to the contrary.
Regarding Applicant’s argument that Formula I is only one of a large group of insecticides disclosed for CN ‘120’s purposes and that there is no particular reason to choose an insecticide of Formula I by one of ordinary skill in the art, Ma et al. teach that fatty alcohol polyoxyethylene ether surfactant JFC-6 is added to the defoliants. One of ordinary skill in the art would have been motivated to use a fatty alcohol polyoxyethylene ether wherein n is 5 (AEO-5) based on the teaching of CN107156120. CN107156120 teaches a pesticidal composition wherein the composition comprises a lauryl alcohol polyoxyethylene ether series is lauryl alcohol polyoxyethylene ether AEO-3, lauryl alcohol polyoxyethylene ether AEO-4, lauryl alcohol polyoxyethylene ether AEO-5, lauryl alcohol polyoxyethylene ether AEO-6, Lauryl alcohol polyoxyethylene ether AEO-7, lauryl alcohol polyoxyethylene ether AEO-9, and lauryl alcohol polyoxyethylene ether AEO-10. Based on this teaching one of ordinary skill in the art would have been motivated to substitute one fatty alcohol polyoxyethylene ether for another. It would have been obvious to one of ordinary skill in the art to substitute one fatty alcohol polyoxyethylene ether, AEO-5 for another, JFC-6, because CN107156120 teaches that lauryl alcohol polyoxyethylene ethers are functional equivalent lauryl alcohol polyoxyethylene ethers in agricultural compositions, without evidence to the contrary.
Applicant argues that the experimental data in the specification show superior defoliation when all of the features are satisfied, particularly with high concentrations of feature C. In response to Applicant’s argument, evidence of nonobviousness must be commensurate in scope with that of the claimed subject matter. The data demonstrates that the C12-C14 fatty alcohol polyoxyethylene (5) ether samples in Table 3, for example, sample 1 at 100X (0.8 wt.%) dilution provides a range of 60.3%-94.97% defoliation in peppers. Sample 1 at 160X (0.5 wt.%) dilution provides a range of 66.25%-79.71% defoliation in peppers. Sample 1 at 400X (0.2 wt.%) dilution provides a range of -1.46-14.5% defoliation in peppers. Defoliation decreases as the dilution increases. The combination of C12-C14 fatty alcohol polyoxyethylene (5) ether + ethephon provides the best defoliation. Regarding the abscission rate of pepper data, the abscission rate of the fatty alcohol polyoxyethylene (5) ethers appear to be lower than the combination of the C12-C14 fatty alcohol polyoxyethylene (5) ether + 40% ethephon and ethephon alone. However, the data is not commensurate in scope with independent claim 1 because the defoliation of the application of the polyoxyethylene (5) ethers at a concentration of 0.2 wt.% is significantly lower than the application of polyoxyethylene (5) ethers at 0.5 and 0.8 wt.%. As such, Applicant has not established nonobvious evidence that is commensurate in scope with that of the claimed subject matter.
Allowable Subject Matter
Claims 6 and 13 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. The secondary considerations in the original specification support unexpected defoliation of pepper plants when the concentration of a fatty alcohol polyoxyethylene (5) ether, as currently claimed, is applied at a concentration of 0.5 wt.% or 0.8 wt.%.
Conclusion
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Andriae M Holt whose telephone number is (571)272-9328. The examiner can normally be reached Monday-Friday, 8:00 am-4:30 pm EST.
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/ANDRIAE M HOLT/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614