CTNF 17/802,104 CTNF 87710 DETAILED ACTION Notice of Pre-AIA or AIA Status 07-03-aia AIA 15-10-aia 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 07-42-04 AIA 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 02/17/26 has been entered. 07-30-03-h AIA Claim Interpretation Applicant’s claim 1 and claim 6 do not actually require the presence of the second additive as it is optional as is clearly stated. However, these claims do limit the amount of the second additive if it is present in the composition, then it has to be present in amounts of between 0.1% and 15% by weight of the capsule suspension concentrate, or between 0.3 to 3% by weight of the capsule suspension concentrate, respectively. Claim Objections 07-29-01 AIA Claim 12 is objected to because of the following informalities: the steps in claim 12 should be 1), 2), etc. not 1., 2., etc. As periods should only be used at the end of claims or for abbreviations as per the MPEP . Appropriate correction is required. Claim Rejections - 35 USC § 112 07-30-01 AIA The following is a quotation of the first paragraph of 35 U.S.C. 112(a): (a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention. The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. New Matter Claim 12 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Applicant’s previously amended claim 12 to recite that the at least one compound having isocyanate reactive groups is in phase A prior to emulsifying and forming the microcapsules which form the particulate disperse phase. The examiner cannot find where applicants have explained where they have support for this amendment and the examiner only sees paragraphs [0032-0045] which explain applicants process and in paragraph [0042] they explain that component a1.1) which are the at least one compound having the isocyanate reactive groups are added after the emulsion is formed, not as part of phase A which is mixed into phase B as is claimed by applicants. Thus, this previous amendment to applicant’s claim 12 appears to have added new matter to the claims. Because the original claims a specification have the addition of a1.1) when it is water being when the phases are emulsified or a separate step after emulsification wherein a1.1) is added when it is not water. Thus, as discussed above it appears that applicants have actually added new matter to this claim when this amendment was made. Enablement 07-31-02 AIA Claim 12 is also rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention. Specifically, claim 12 was previously amended by applicant’s to have the isocyanate reactive group present with the isocyanate in the oil phase which is then emulsified into the aqueous phase. However, this amendment is not enabled because this amendment would not lead to the claimed microcapsules because the isocyanate reaction with the isocyanate reactive groups would happen in the oil phase as soon as they were mixed prior to the droplets being formed by emulsifying A into B) and as such no interfacial polymerization around the emulsified droplets of phase A would occur to form the microcapsules if applicant’s claim 12’s oil phase contains both the isocyanate reactive group and the isocyanate/isocyanate mixture as applicant’s previously amended claim 12 to recite. This process as claimed in claim 12 would not lead to the claimed microcapsules and as such would not prepare the claimed microcapsules as claimed you would merely form the polyurea and/or polyurethane in the oil phase see for instance the processes in Borzatta and Ramdas cited below which are very similar to the disclosed processes for making the claimed microcapsules wherein the isocyanate reactive group is in the aqueous phase or added after the emulsification of the oil phase is done so that the amines, etc. can react at the interface of the oil phase and aqueous phase to encapsulate the oil phase which would not occur if the isocyanate reactive group is already present in the oil phase as claimed in claim 12. Additionally, as discussed above in the new matter rejection this amendment does not appear to be supported by the specification and claims as originally filed . Claim Rejections – 35 USC § 103 07-20-aia AIA 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. 07-23-aia AIA 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. 07-20-02-aia AIA 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. 07-21-aia AIA Claim (s) 1-11, 13-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Borzatta et al. (EP2589290) and further in view of Ramdas et al. (US20150230471) . Determination of the scope and content of the prior art (MPEP 2141.01) Regarding claims 1-5, 11, 15, Borzatta teaches suspensions comprising microcapsules (particulate disperse phase) which are produced from an organic phase comprising for instance in example 10: ~10.3 wt% lambda-cyhalothrin (a2.1/pyrethroid), ~0.5 wt% piperonyl butoxide, 1.6 wt% Voranate M220 (reads on applicant’s a1.2/isocyanate or isocyanate mixture), 9.0 wt% biodiesel/Solvesso 200 ND (a2.2/water-insoluble solvent) and an aqueous phase comprising 1.1 wt% Reax 100M (reads on b1.1/protective colloid), and 50 wt% water (reads on a1.1/at least one compound having isocyanate reactive groups and also the liquid aqueous phase) and comprises/can comprise further additives, e.g. ~12.3 wt% of various additives (Example 10), and an additional ~15.2% water for completion added after reaction is complete and microcapsules are formed (based on the total weight of the composition being 955 grams). The obtained microcapsules (in the disperse phase) have a mean particle size of 8.9 microns, and Borzatta teaches wherein the active agent in the microcapsules can be deltamethrin which is now required by applicant’s claim 15 (Example 10/CS11; Table 3; [0064-0065]; examples; claims). Borzatta further teaches wherein their capsule suspensions are obtained by a process comprising reacting the at least one compound having isocyanate-reactive groups and the isocyanate or isocyanate mixture starting from an emulsion comprising the at least one compound having isocyanate reactive groups, e.g. water, and the isocyanate or isocyanate mixture, the pyrethroid, and the organic, water-insoluble solvent, e.g. biodiesel, additives, and the at least one protective colloid are used in the above disclosed amounts which read on those instantly claimed (see entire document; e.g. [0094-0102]; examples). Regarding claim 7, Borzatta teaches wherein the ratio of a2.1, in example 10 lambda-cyhalothrin present in 10.3 wt% to the isocyanate or isocyanate mixture, Voranate M220 in example 10 is 1.6 wt%, is between 2:1 and 10:1, 10.3/1.6 is 6.4:1 (see Example 10/CS11; Table 3). Regarding claims 13-14 and 16, Borzatta teaches applicants composition of claim 1 and as it is a liquid formulation and that is all that is required to be in applicants claimed product, and the composition of Borzatta is in a liquid form it is therefore useful for applicants intended uses of foliar application or soil application and Borzatta specifically teaches that their compositions can be applied to/on soils ([0092]; Example 10/CS11; Table 3). Regarding claims 1-16, specifically 14-16, Borzatta teaches/claims wherein their release of active agents from their microcapsules last longer than 3 months (Example 10/CS11; Table 3; claim 1), and wherein their capsule suspensions are intended to be applied to soils ([0092]). Regarding claim 6, Borzatta teaches wherein the amount/concentration of applicant’s a1.2), the isocyanate/isocyanate mixture is between 0.5 wt% and 2 wt%, specifically they exemplify in example 10, ~1.7 wt%, and the amount of applicants active ingredient a2.1) to fall within the claimed range, for instance in example 10: ~10.3 wt% lambda-cyhalothrin (a2.1), and Borzatta teaches wherein the protective colloid b1.1) is present in ~1.1 wt% (Reax 100M (reads on b1.1)) which is very close to the claimed between 0.2% and 1% by weight, and Borzatta teaches wherein their microcapsules, and specifically the aqueous phase can comprise additives, e.g. electrolytes in amounts of 0.1 to 30% by weight which reads on the claimed range of 0.3-3 wt% of the one or more second additives in the aqueous phase (Example 10; [0094-0104]; [0052-0064]; Examples; claims). Regarding claims 1 and 8, Borzatta teaches wherein their liquid aqueous phase comprises at least a surfactant and can comprise additional components, e.g. thickeners, antifoam agents, antifreeze agents, etc. which reads on the one or more second additives ([0176]; Claim 19; [0125]; [0080-0086]). Borzatta teaches examples wherein the thickener, antifoam, antifreeze and biocide are present in amounts of ~8% of the capsule suspension concentrate (see entire document, e.g. example 10). Regarding claim 9, Borzatta teaches wherein the solvent can be the claimed mixture of 1-methyl and 2-methylnaphthalenes and naphthalene (which is commercially available as Solvesso 200) ([0064]). Ascertainment of the difference between prior art and the claims (MPEP 2141.02) Regarding claims 1-11, and 13-16, Borzatta does not teach wherein their capsule suspension comprises one of the specifically claimed additives or makes them with the claimed additives via the newly claimed product by process limitations in the claimed amounts. However, these deficiencies in Borzatta are addressed by Ramdas. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Ramdas teaches forming microcapsules using isocyanates and which can be used to encapsulate pyrethroids and wherein the organic phase which is what is encapsulated can comprise surfactants, and wherein the surfactants can be the claimed alkyl ethoxylates/alkyl alkoxylates (See [0017-0018]; [0026]; [0023-0024]; [0028]; [0033-0039]) which were produced from an organic phase and an aqueous phase via interfacial polymerization as instantly claimed and wherein the organic phase can comprise the claimed additives, specifically the claimed surfactants, more specifically ethoxylated alcohols, which are the same as the claimed alkyl ethoxylates, and or ethoxylated/propoxylated alcohols which are the same as the claimed alkyl propoxy ethoxylates, in amounts which are not particularly restricted, but typical amounts are from 0.01% to 10% of the organic phase which would encompass the claimed amounts/concentrations ([0017-0018]; [0026]; [0023-0024]; [0028]; [0033-0039]; [0041];). Regarding claims 1-16, specifically 1, 6 and 10, Borzatta does not specifically teach wherein the proportions of all of their components overlap with those claimed or wherein the proportion of phase A is between 30% and 70% by weight of the total suspension concentrate. However, this deficiency in Borzatta is also addressed by Ramdas as Ramdas teaches wherein their additives which read on the instantly claimed (a3.1) and can be the same additives as claimed in claim 1, are present in amounts which overlap the claimed range specifically 0.01 to about 10 wt% (See [0033-0035], and wherein the organic liquid phase to the aqueous phase is less than 50:50 (see formulation examples) which would read on the claimed proportion of organic solvent being from 25% and 40% by weight and the claimed aqueous phase being between 30% and 70% by weight of the overall/total formulation and Ramdas teaches wherein the dispersing means is selected to help control the size of the resultant microcapsules/particles ([0017-0018]; [0023-0024]; [0026]; [0023]; [0028]; [0033-0039];[0041]). Ramdas teaches suspensions of polyurea and polyurethane microcapsules which were produced from an organic phase and an aqueous phase via interfacial polymerization ([0017-0018]; [0026]; [0023-0024]; [0028]; [0033-0039]; [0041]) as instantly claimed and wherein the organic phase can comprise the claimed additives, specifically the claimed surfactants ([0026-0028]; [0017-0018]; [0033-0034]), more specifically they prefer the claimed ethoxylated alcohols/alkyl alkoxylates ([0033-0034]; [0035]), which are the same as the claimed alkyl ethoxylates, and or ethoxylated/propoxylated alcohols which are the same as the claimed alkyl propoxy ethoxylates, in amounts which are not particularly restricted, but typical amounts are from 0.01% to 10% of the organic phase which would encompass the claimed amounts/proportions and wherein the pesticides are pyrethroids ([0023-0024]; [0035]), and they teach wherein the microcapsules formed via their process have sizes which overlap those instantly claimed/preferred ([0036]; sections cited above; also [0041]). Finding of prima facie obviousness Rationale and Motivation (MPEP 2142-2143) It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have formed the claimed composition wherein the ratios/amounts/concentrations of the claimed components read on the ratios and amounts/concentrations claimed because Borzatta teaches methods of preparing microcapsules which comprise mixing an organic phase comprising the claimed organic solvents, the claimed active agents, and the claimed isocyanates with additives to an aqueous phase, wherein the water of the aqueous phase acts as a reactant with the isocyanates to form the microcapsules. It also would have been obvious to add the specifically claimed one or more first additives in the claimed amounts to the organic phase of the microcapsule forming mixture that leads to the surfactant/first additive/alkyl ethoxylate being inside the formed microcapsules in the suspension in order to form the claimed microcapsule suspension because Ramdas teaches wherein the claimed surfactants can be in the organic phase in the claimed amounts which forms the core of the microcapsules. It also would have been obvious to one of ordinary skill in the art at the time of the instant filing to have formed the claimed capsule suspension composition having the claimed amounts of the claimed components because formulating such microcapsule compositions is known in the art as taught by Borzatta and it was known to optimize the amounts of the components within the claimed ranges as is taught by the combination of Borzatta and Ramdas as discussed above because by optimizing the amounts of the additives including surfactants, organic phase, etc. help to control the size of the resultant nanoparticles and as such it would be obvious to optimize the amounts of the components as taught by the combined prior art and as claimed in order to afford the most effective pyrethroid containing microcapsules for extended/prolonged release. “[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 reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It also would have been obvious to select the claimed oil soluble oil phase surfactants instantly claimed for use as the oil phase additive in the microcapsules of Borzatta in order to develop the instantly claimed microcapsule suspension because it was already known in the art to use the claimed additives in the claimed/overlapping amounts in the oil/organic phase during interfacial polymerizations for forming polyurea and/or polyurethane microcapsules with isocyanates/diisocyanates as claimed and is taught by Ramdas for encapsulating the same active agents in order to provide effective microcapsule formation and formulations comprising the claimed active agents in polyurea and polyurethane microcapsules. Thus, one of ordinary skill in the art would be motivated to use a known effective surfactant for forming the same types of microcapsules via the same reaction process in known effective amounts when forming other polyurea microcapsules via interfacial polymerization for encapsulating actives effectively and to help the oil droplets from coalescing which will help to control the size of the droplets in the emulsion and therefore the size of the resultant pyrethroid containing microcapsules which are formed. In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a). From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the 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, as evidenced by the references, especially in the absence of evidence to the contrary. Response to Arguments/Remarks Applicant’s amendments to the claims have overcome the previous claim objection. The examiner was further examining claim 12 and realized that applicant’s previous amendments introduced some 112(a) issues which are presented herein. Applicant’s arguments have prompted the new grounds of rejection under 103 presented herein. Applicant’s arguments with respect to Wang were persuasive upon further consideration and this rejection has been withdrawn. However, updated searching as required as part of the continued examination process has uncovered additional prior art which prompted the new grounds of rejection under 103 presented herein. Applicant’s arguments insofar as they pertain to Wang are not addressed herein since this rejection has been withdrawn in favor of the new grounds of rejection herein. Applicants argue that their data in the specification demonstrates the % of healthy plants and shoot weight are remarkably decreased if the one or more first additives is not in the particulate phase. The examiner respectfully points out that “The fact that appellant 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.” Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). In the instant case, Ramdas already renders the addition of the claimed surfactants into the oil phase in the claimed amounts obvious because these surfactants were already known in the art to be useful for forming the same types of microcapsules when placed in the organic phase and wherein the microcapsules comprise the same active ingredients instantly claimed. The surfactants in the oil phase would be useful for keeping the oil droplets dispersed in the continuous aqueous phase thereby helping to control the size, etc. of the microcapsules which are formed because these surfactants would help to keep the oil droplets dispersed throughout the aqueous phase helping to control the oil droplets from coalescing, etc. Applicants then argue that they have unexpected results. The examiner firstly respectfully points out that the prior art Ramdas already recognizes including the claimed surfactants within the cores of the same types of microcapsules which preferably comprise the same pyrethroid active agents which are instantly claimed. Thus, it appears that applicants argued unexpected results would not necessarily be unexpected in light of the combined teachings of the prior art and would be result effective of the combination of the prior art for the reasons discussed above and incorporated herein. Further, the examiner respectfully notes that even though applicant’s have discovered another benefit for the above obvious combination it does not make the instantly claimed inventions patentable at this time because it appears that these results are firstly not commensurate in scope with the instant claims especially since it is known that applicant’s claimed alkyl ethoxylates/alcohol ethoxylates exhibit insecticidal properties on their own (See J. Econ. Entomol., 2007, Abstract only), and as such the increased activity and/or plant health from applying two insecticidal actives which are packaged together in microcapsules to the plants instead of just 1 is not unexpected especially since it was already known to use the claimed surfactants in the cores of polyurea/polyurethane microcapsules in overlapping amounts with claimed actives as is taught by Ramdas. Thus, one of ordinary skill in the art would expect the combination of the surfactant in the core of the microcapsules with the pyrethroid active agents to exhibit increased activity since these microcapsules would contain two insecticidal active agents in immediate contact with one another for application to the plants and/or insects for their control. Additionally, with respect to the increased insecticidal activity the closest comparison would be applicants composition which comprises the encapsulated deltamethrin and the unencapsulated additive 1 (e.g. BT V) vs the microcapsules of the invention as this would only have one variable different, e.g. whether or not the additive is in the microcapsules or not. As such the increased insecticidal activity cannot be directly compared between the formulation without the additive in the formulation since at least some of applicants additives are known to exhibit insecticidal activity themselves. Additionally, applicants are claiming a much broader scope of solvents, active agents and reaction additives, and second additives than are disclosed in their argued unexpected results, that is to say the results are obtained with a much narrower composition scope than applicant’s instant claim scope as it is currently written especially since some water-immiscible organic solvents are also known to exhibit insecticidal activity, e.g. mineral oils, neem oil, vegetable oils, e.g. cottonseed oil all of which are known carriers/solvents for agricultural active agents (See CSU extension https://extension.colostate.edu/resource/insect-control-horticultural-oils/). Further it is not at all unexpected that the claimed microencapsulated formulation comprising at least two insecticidal active agents (Break thru vibrant which are alkyl ethoxylates and have activity as noted above) and pyrethroids to work better than a formulation which only comprises 1 insecticidal active agent deltamethrin which is unencapsulated based on the fact that two actives would be expected to work additively and therefore be better than the 1 active agent alone. In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a). From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the 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, as evidenced by the references, especially in the absence of evidence to the contrary. Conclusion No claims are allowed. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Erin E Hirt whose telephone number is (571)270-1077. The examiner can normally be reached 10:30-7:30 ET M-F. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue X Liu can be reached at 571-272-5539. 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. /ERIN E HIRT/Primary Examiner, Art Unit 1616 Application/Control Number: 17/802,104 Page 2 Art Unit: 1616 Application/Control Number: 17/802,104 Page 3 Art Unit: 1616 Application/Control Number: 17/802,104 Page 4 Art Unit: 1616 Application/Control Number: 17/802,104 Page 5 Art Unit: 1616 Application/Control Number: 17/802,104 Page 6 Art Unit: 1616 Application/Control Number: 17/802,104 Page 7 Art Unit: 1616 Application/Control Number: 17/802,104 Page 8 Art Unit: 1616 Application/Control Number: 17/802,104 Page 9 Art Unit: 1616 Application/Control Number: 17/802,104 Page 10 Art Unit: 1616 Application/Control Number: 17/802,104 Page 11 Art Unit: 1616 Application/Control Number: 17/802,104 Page 12 Art Unit: 1616 Application/Control Number: 17/802,104 Page 13 Art Unit: 1616 Application/Control Number: 17/802,104 Page 14 Art Unit: 1616
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