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 .
Election/Restrictions
Applicant’s election without traverse of Group I (claims 1-11) in the reply filed on 9/30/2025 is acknowledged.
Groups II-III (claims 12-14) are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 9/30/2025.
Response to Amendment
The amendment filed on 2/5/2026 has been entered. Claim(s) 1, 3-4, 6 is/are currently amended. Claim(s) 5 has/have been cancelled. Claim 15 is new. Claim(s) 1-4 and 6-15 is/are pending with claim(s) 12-14 withdrawn from consideration. Claim(s) 1-4, 6-11 and 15 is/are under examination in this office action.
Response to Arguments
Applicant's argument filed on 2/5/2026, with respect to 102 rejection has been fully considered but is not persuasive.
Applicant argued that Wacker is directed to suspension concentrates. Such suspension concentrates (SC) describe solid pesticide particles mixed with water. By contrast, Claim 1 is directed to suspoemulsions (SE), which combines both suspended solid particles and fine oil-based emulsion droplets (e.g. an emulsion in water, EW) in a single water-based formula. The SE's of Claim 1 are therefore naturally dual-phase, offering unexpected benefits including combining active ingredients with different solubilities, reducing tank-mixing issues, and improving stability, whereas an SC merely suspends a solid. Applicant therefore submits that Claim 1 is novel over Wacker.
In response, Wacker teaches identical composition as the instant claim 1 as stated in the 102 rejection. Therefore, the recited suspoemulsions (SE) combining both suspended solid particles and fine oil-based emulsion droplets (e.g. an emulsion in water, EW) in a single water-based formula is inherent, regardless of the recited term “suspoemulsion”. The oil-based emulsion droplets are coming from the claimed oil (component (b)) dispersed in water. Since Wacker teaches the same oil dispersed in water. the oil-based emulsion droplets are expected to be present.
Applicant's argument filed on 2/5/2026, with respect to 103 rejection has been fully considered but is not persuasive.
Applicant pointed out the typo of the previous office action in citing reference of Faers et al. The examiner submits that the correct reference is Faers et al (US 20180235208 A1), not Baur et al (US 20180192644 A1). The present office action corrects this mistake in the 103 rejection of claims 7-8 below.
Applicant argued that in Example F1 (a suspoemulsion with 0.3 % xanthan, as Rhodopol G, reproduced in part below) and comparative Example F4 (a suspension concentrate with 0.1 % xanthan, reproduced in part below), example formulations of the present disclosure unexpectedly provide an approximately 30% increase in volume median diameter (vdm) of spray droplets, in addition to a nearly 70% decrease in the percentage of spray droplets with a diameter less than 100pm. One of ordinary skill in the art would recognize that this change in droplet size distribution would lead to a significant decrease in spray drift in the field.
In response, comparative Example F4 (a suspension concentrate) differs from Example F1 (a suspoemulsion) in lacking of oil (component (b): a mixture of rape seed oil methyl ester and 2-ethyl-hexyl-palmitate). Since Wacker teaches identical composition as the instant claim 1 including the oil component (b) as stated in the 102 rejection, Wacker’s composition should be comparable to the recited Example F1, not the recited comparative Example F4. Therefore, the recited “approximately 30% increase in volume median diameter (vdm) of spray droplets, in addition to a nearly 70% decrease in the percentage of spray droplets with a diameter less than 100pm” are expected to be present in Wacker’s composition.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 2, 6, 9, 10, and 11 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wacker et al (US 20140141977 A1).
Regarding claims 1, 6, 9, 10, and 11, Wacker teaches a suspension concentrate comprising a) one or more pesticides that are solid at room temperature [abstract] including imidacloprid, epoxiconazole, tebuconazole, azoxystrobin, trifloxystrobin, thiacloprid, thiamethoxam, fipronil, ethiprol, mesotrione, and tembotrione [0083], reading on the claimed a) at least one agrochemical active compound which is solid at room temperature in claims 1 and 6.
Wacker teaches that the suspension concentrate comprises vegetable oils and mineral oils as water-immiscible solvents [0166], reading on the claimed b) at least one vegetable or mineral oil.
Wacker teaches that the suspension concentrate comprises emulsifiers including ethoxylated castor oil as auxiliaries [0131, 0134], reading on the claimed c) at least one emulsifier and ethoxylated castor oils in claim 9.
Wacker teaches that the suspension concentrate comprises nonionic surfactants including EO/PO block copolymer (Genapol PF 40) as auxiliaries [0132-0133, 0201], reading on the claimed d) at least one non-ionic surfactant including polyethylene oxide-polypropylene oxide block copolymers in claim 10.
Wacker teaches that the suspension concentrate comprises auxiliaries including antifoms, antioxidants, preservatives and colorants [0131], reading on the claimed e) optionally one or more other additives specified in claim 11.
Wacker teaches that the suspension concentrate comprises a thickener including xanthan (Kelzan S) in an amount of 0.23% by weight (calculated by the examiner based on Example 6 [0215]), falling within the claimed range of 0.1 to 3% by weight.
The recited “for reducing drift of the agrochemically active compound upon spraying” is an intended use that imparts no additional structure beyond the claimed product and need not be taught by the prior art to read on the claimed invention. See MPEP 2111.02(III).
Regarding claim 2, thickeners are optional in Wacker’s composition [0131]. Therefore, the composition can be free of thickeners.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
Claim(s) 3-4 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wacker et al (US 20140141977 A1).
Wacker teaches the suspo-emulsion in claim 1 as stated in the 102 rejection above.
Regarding claim 3, Wacker teaches that the suspension concentrate comprises 10-60 wt% of the pesticides [0123], overlapping the claimed 8-35 wt% of a). A prima facie case of obviousness exists where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" (MPEP 2144.05.I). In addition, Example 3 teaches 128.2 g of azoxystrobin in 539.3 g of total composition, which is equivalent to 24 wt% of azoxystrobin, as calculated by the examiner, falling within the claimed 8-35 wt% of a).
Wacker teaches that the suspension concentrate comprises 10-90% of solvents [0128]; and the ratio of water to water-immiscible solvents is 10:1 to 1:10 [0129]. Thus, the amount of vegetable oils and mineral oils as water-immiscible solvents is in the range of 1-90 wt%, as calculated by the examiner, overlapping the claimed 8-40 wt% of b).
Wacker teaches that the suspension concentrate comprises EO/PO block copolymer (Genapol PF 40) in an amount of 1.2 wt%, as calculated by the examiner according to Example 6 [0215], falling within the claimed 0.4-4 wt% of c).
Wacker teaches that the suspension concentrate comprises anionic surfactants such as Emulsogen SF 8, which reads on the claimed d). Emulsogen SF 8 is 1.35 wt% in Example 1, as calculated by the examiner, falling within the claimed 0.5-15 % of d).
Wacker teaches that the suspension concentrate comprises 1-50 wt% of one or more auxiliaries [0125] which overlaps the claimed 0.1-20 wt% of e).
In all Wacker’s examples, water is added to 100 wt%.
Wacker’s Example 1 is free of viscosity modifiers selected from the group of polyacryl amides, guar gum, polyethylene oxides.
Regarding claim 4, Wacker teaches that the suspension concentrate comprises 10-60 wt% of the pesticides [0123], overlapping the claimed 12-25 wt% of a). A prima facie case of obviousness exists where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" (MPEP 2144.05.I). In addition, Example 3 teaches 128.2 g of azoxystrobin in 539.3 g of total composition, which is equivalent to 24 wt% of azoxystrobin, as calculated by the examiner, falling within the claimed 12-25 wt% of a).
Wacker teaches that the suspension concentrate comprises 10-90% of solvents [0128]; and the ratio of water to water-immiscible solvents is 10:1 to 1:10 [0129]. Thus, the amount of vegetable oils and mineral oils as water-immiscible solvents is in the range of 1-90 wt%, as calculated by the examiner, overlapping the claimed 15-35 wt% of b).
Wacker teaches that the suspension concentrate comprises EO/PO block copolymer (Genapol PF 40) in an amount of 1.2 wt%, as calculated by the examiner according to Example 6 [0215], falling within the claimed 0.5-3 wt% of c).
Wacker teaches that the suspension concentrate comprises anionic surfactants such as Emulsogen SF 8, which reads on the claimed d). Emulsogen SF 8 is 1.35 wt% in Example 1, as calculated by the examiner, which is merely close to the claimed lower limit of 1.5-7.5 % of d). A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (MPEP 2144.05.I). Besides, Wacker teaches the anionic surfactant as auxiliaries [0131-0134]; and the suspension concentrate comprises 1-50 wt% of one or more auxiliaries [0125] which overlaps the claimed 1.5-7.5 % of d).
Wacker teaches that the suspension concentrate comprises 1-50 wt% of one or more auxiliaries [0125] which overlaps the claimed 1-10 wt% of e).
In all Wacker’s examples, water is added to 100 wt%.
Regarding claim 15, Wacker teaches xanthan gum as the thickener; and Example 6 teaches a xanthan gum (Kelzan) in an amount of 0.22 wt% as stated above. This amount is sufficiently close to the claimed lower limit of 0.3 wt% that one of ordinary skill in the art would prima facie expect compositions based on these amounts to have the same properties. It would have been obvious to one of ordinary skill in the art at the time of filing to select amounts within the claimed range based on the close proximity to the prior art range and the reasonable expectation of obtaining a product having the same properties. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (MPEP 2144.05.I).
In addition, Wacker teaches that xanthan gum is added and adjusted to the desired end viscosity [0209]. Thus, the amount of xanthan gum is recognized as affecting viscosity with a target. A recognition in the prior art that a property is affected by the variable is sufficient to find the variable result-effective. In re Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012). It would have been obvious to one of ordinary skill in the art at the time of filing to optimize the amount of xanthan gum by routine experimentation to arrive at the claimed 0.3-0.5 wt%, with a reasonable expectation of successfully obtaining the desired viscosity in the final product. See MPEP 2144.05. "[D]iscovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art." In re Boesch, 617 F.2d 272,276 (CCPA 1980). "[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 (CCPA 1955).
Claim(s) 7-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wacker as applied to claim 1 above, further in view of Faers et al (US 20180235208 A1).
Regarding claims 7-8, Wacker teaches the suspo-emulsion in claim 1 as stated in the 102 rejection above.
Wacker teaches the pesticides including imidacloprid [0083], but does not teach deltametrin, fluopyram and diflufenican.
In the same field of endeavor, Faers teaches oil-based suspension concentrates of agrochemical active compounds [abstract]. The agrochemical active compounds include fluopyram [0085], diflufenican [0087], deltamethrin [0126] as well as imidacloprid [0084].
Since Faers recognized fluopyram, diflufenican, deltamethrin and imidacloprid are equivalents for the same purpose of being used as agrochemical active compounds, it would have been obvious for one of ordinary skill to substitute imidacloprid with fluopyram, diflufenican, or deltamethrin in Wacker’s composition. It is prima facie obvious to combine or substitute equivalents for the same purpose where the equivalence is recognized by the prior art. See MPEP 2144.06.
Wacker teaches vegetable oil as water-immiscible solvent as stated above, but does not specify that the vegetable oil is rape seed oil methyl ester.
Faers teaches rape seed oil methyl ester as the vegetable oil as a water-immiscible fluid [0094-0095].
It would have been obvious to one of ordinary skill in the art at the time of filing to select rape seed oil methyl ester as the vegetable oil in Wacker’s composition, as it is expressly disclosed as being useful in this capacity. It has been established that selection of a known material based on its suitability for its intended use is prima facie obvious (Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)). See MPEP 2144.07.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JIANGTIAN XU whose telephone number is (571)270-1621. The examiner can normally be reached Monday-Thursday.
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, Robert Jones can be reached on (571) 270-7733. 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.
/JIANGTIAN XU/Primary Examiner, Art Unit 1762