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 .
Acknowledgement is made to Applicant’s response filed 02/06/2026.
Claims 1-4, and 6-20 are pending.
Claim 4, 14, 15, and 17-19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 06/26/2025. It is noted that Applicant did not include said limitations in the election of the method are required. It is noted that Applicant asserts that claims 14-15 and 17-19 are drawn to the elected species. Applicant’s argument is not found persuasive. Specifically, the species requirement indicated that Applicant was required to elect a single species of method as defined by the components present and the method steps required. It is noted that Applicant’s response did not include the step of application at a specific concentration (claims 14 and 15) or that the Corynespora cassiicola was resistant to at least one fungicide that is not the compound, and Applicant’s election was to the (R) enantiomer of the compound no. 2, wherein claims 18 and 19 require the (S) enantiomer additionally be present, wherein the election did not require the presence of the (S) enantiomer.
Claims 1-3, 6-13, 16, and 20 are currently under consideration to the extent that they read upon Applicant’s elected species.
Withdrawn Rejections and/or Objections
The objection to claim 13 because of the following informalities: claim 13 recites “the method is controlling comprising applying or to a propagation material thereof,” is withdrawn in view of Applicant’s amendment to claim 13 resolving the informality.
Rejections Maintained and Made Again – With New Grounds for Newly Added Claim 20
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.
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) 1-3, 6-13, 16, and 20 (all claims currently under consideration) is/are rejected under 35 U.S.C. 103 as being unpatentable over Weiss et al (WO 2017/153380)(IDS Reference).
Weiss teaches that compounds of formula (I) are utilized to control plant diseases caused by Ascomycete class pathogens, and specifically names Corynespora cassiicola (see entire document, for instance, page 32, line 21 through page 33, line 5). The target crop is taught as being soybeans (soya beans) (see entire document, for instance, page 35, lines 3-13). Weiss teaches a method of controlling phytopathogenic fungi comprising applying a compound of formula (I) to a phytopathogenic fungi, or to the locus of said phytopathogenic fungi, in particular to a plant susceptible to attack by phytopathogenic fungi, or a propogation material thereof (see entire document, for instance, the paragraph bridging pages 3 and 4 and claim 16). Weiss further teaches that the compound of formula (I) can be selected from the group including structure F-1 (which notably is the R enantiomer):
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Weiss, while teaching the instantly elected method steps, structure, pathogen, and target crop, and providing motivation for their use together, does not provide a singular example combining all of said elements to the level that rises to anticipation.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the instantly claimed invention to utilize structure F-1 for controlling plant diseases associated with Corynespora cassiicola in soybean plants. One would have been motivated to do so since Weiss directly teaches each of said elements as useful in the method of Weiss.
With regard to the amount of the controlling of the composition, the prior art teaches the instantly claimed method, wherein the effects of said method steps would necessarily occur. It is noted that MPEP 2112.01 states: “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). “When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).” It is noted that the control of the Corynespora cassiicola is a property that flows from the composition, and therefore, would be present in the prior art method.
Response to Arguments
Applicant argues in the Remarks filed 02/06/2026 that in light of the DHODH mode of action compared to ipflufenoquin, that the instant invention is non-obvious. Applicant’s argument is not found persuasive. Specifically, the closest prior art is Weiss, wherein Weiss is not directed to ipflufenoquin. As such, Applicant’s arguments are not found persuasive against the prior art of record.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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 TREVOR M LOVE whose telephone number is (571)270-5259. The examiner can normally be reached M-F typically 6:30-3.
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, Bethany Barham can be reached at 5712726175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TREVOR LOVE/Primary Examiner, Art Unit 1611