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 January 12, 2026. Claims 1-9 are pending in the application. Claims 1 and 4 have been amended. Claims 7-9 are newly added. Claims 1-9 will be examined.
Status of the Claims
The rejection of claims 1-6 rejected under 35 U.S.C. 103 as being unpatentable over Hayashi et al. (EP 598,515) in view of Klostermann et al. (U.S. 2017/0295782) is maintained.
The following rejections are reiterated and/or newly applied. They constitute the complete set of rejections and/or objections presently being applied to the instant application.
New Objections and Rejections Necessitated by Amendments filed 1/12/2026
Claim Objections
Claims 1 and 7 are objected to because of the following informalities: cross-out in claim 1 and missing period in claim 7. There is a cross-out of “rapeseed oil” in line 3. This cross-out is inappropriate because the previous claim amendment didn’t recite “rapeseed oil”.
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The above recitation is from Applicant’s claim amendment filed 6/9/2025. There is no recitation of “rapeseed oil”. As such, there should be no cross-out in the instant amendment.
There is a missing period at the end of claim 7. See line 3.
Appropriate corrections are required.
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 2, 3, and 4, and 8 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.
Claim 2 recites the limitation "oil component which is a substance selected from the group consisting of: vegetable oil, vegetable fatty acid methyl ester, vegetable fatty acid ethyl ester…or mixtures thereof" in lines 1-3. There is insufficient antecedent basis for this limitation in the claim. Claim 2 is dependent from claim 1, which has been amended to recite “an oil component comprising rapeseed oil fatty acid methyl ester”. Since the oil component is now limited to “rapeseed oil fatty acid methyl ester”, the oil component can no longer be selected from the generically claimed vegetable oil, vegetable fatty acid methyl ester, vegetable fatty acid ethyl ester…or mixtures thereof”. Thus, a lack of antecedent basis.
Claim 3 recites the limitation "oil component which is a substance selected from the group consisting of: vegetable oil, vegetable fatty acid methyl ester, vegetable fatty acid ethyl ester…or mixtures thereof" in lines 1-3. There is insufficient antecedent basis for this limitation in the claim. Claim 3 is dependent from claim 2, which is dependent from claim 1, which has been amended to recite “an oil component comprising rapeseed oil fatty acid methyl ester”. Since the oil component is now limited to “rapeseed oil fatty acid methyl ester”, the oil component can no longer be selected from the generically claimed vegetable oil, vegetable fatty acid methyl ester, vegetable fatty acid ethyl ester…or mixtures thereof”. Thus, a lack of antecedent basis.
Claim 4 recites the limitation "oil component of vegetable origin” in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 4 is dependent from claim 1, which has been amended to recite “an oil component comprising rapeseed oil fatty acid methyl ester”. There is no longer a recitation of a component that is “vegetable”. Claim 1 previously recited vegetable oil, vegetable fatty acid methyl ester, vegetable fatty acid ethyl ester…or mixtures thereof. These limitations have been cancelled. As such, a lack of antecedent basis for this limitation.
Claim 8 recites “the vegetable origin” in line 4. Because of the use of the term “the” there is an indication that there is “a vegetable origin” earlier in the claim or in a claim from which it depends. While claim 8 recites “the group consisting of vegetable oil, vegetable fatty acid methyl ester…vegetable fatty acid butyl ester, and combination thereof”, it is unclear if these are the “vegetable origins” being referenced. Applicant should clarify the claims.
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 4 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 4, line 2 recites “the vegetable oil is rapeseed oil”. Claim 1 has been amended to recite “the oil component comprising rapeseed oil fatty acid methyl ester”. Therefore, the recitation of “rapeseed” in claim 4 does not further limit the claims. 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.
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 1-9 are rejected under 35 U.S.C. 103 as being unpatentable over Hayashi et al. (EP 598,515) in view of Klostermann et al. (U.S. 2017/0295782). Klostermann et al. cited by Applicant on the IDS dated 3/14/2023.
Applicant’s Invention
Applicant claims an adjuvant for agrochemicals for use in plant protection products, comprising: an oil component comprising rapeseed oil fatty acid methyl ester, and a wetting alkalizing-compatibilizing component comprising: an alkaline non-ionic surfactants consisting of a mixture of ethoxylated alkyl amines with a C13-C15 alkyl chain length, and polyglycerol esters of vegetable fatty acid with a carbon chain length of C12-22.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Hayashi et al. teach a method for activity-enhancing a herbicidal composition containing at least one sulfonylurea type herbicidal active ingredient selected from the group consisting of N-[(4,6-dimethoxypyrimidin-2-yl)aminocarbonyl]-3-dimethylaminocarbonyl-2-pyridinesulfonamide and its salts and methyl 2-[[[4,6-bis(difluoromethoxy)pyrimidin-2-yl]aminocarbonyl]aminosulfonyl]benzoate and its salts which comprises using an ethoxylated fatty amine type surfactant, vegetable oil and/or a mineral oil and other surfactant (page 37, lines 51-56, claim 2).
Regarding claim 1, Hayashi et al. teach the vegetable oil includes rapeseed oil and fatty acids originated therefrom and alkyl esters of the fatty acid (page 3, lines 53-56). Hayashi et al. teach that rapeseed oil is a preferable oil (page 4, line 1).
Regarding claims 1, 5, and 6, Hayashi et al. teach in example 26, Ingredient (1), Compound A is nicosulfuron, a sulfonylurea herbicide. Ingredient (2) is a mixture of polyoxyethylene nonylphenyl ether, dialkylsulfosuccinate, polyoxyethylene hydrogenated castor oil and polyglycerol esters (Trade name: Sorpol 3815K), which is a non-ionic polyglycerol ester of vegetable fatty acid. Ingredient (5) is C15 ethoxylated alkyl amine. Ingredient (6) is a vegetable oil (page 18, lines 19-42).
Hayashi et al. teach other surfactants include fatty acid polyglycerides and glycerin fatty acid esters (page 4, lines 20-22). Hayashi et al. teach the surfactants can be used as a mixture (page 4, lines 23-24).
Regarding claim 2, Hayashi et al. teach the formulation comprise 1 to 65 parts by weight of the ethoxylated fatty amine type surfactant, 1 to 95 parts by weight of the vegetable oil and/or the mineral oil, 0.02 to 81 parts by weight of the sulfonylurea type herbicidal active ingredient. When other surfactant is additionally contained, the mixing ratio thereof in 0.005 to 45 parts by weight, when various kinds of adjuvants for agricultural preparations are contained (page 6, lines 25-33).
Hayashi et al. teach to prepare the herbicidal oil-based suspension containing compound A, preferably 2 to 6 parts by weight of compound A, preferably 19 to 85 parts by weight of the vegetable oil and/or mineral oil, preferably 8 to 15 parts by weight of the other surfactant and preferably 7 to 45 parts by weight of the ethoxylated fatty amine type surfactant, when the whole weight of the herbicidal oil-based suspension or the activity-enhances herbicidal oil-based suspension is calculated as 100 parts by weight (page 7, lines 48-58).
Regarding claims 4 and 8, Hayashi et al. teach preferred vegetable oils include rapeseed oil, soybean oil, sunflower oil, linseed oil (page 3, lines 53-59). Hayashi et al. teach the oils exemplified can be used as a mixture thereof.
Regarding claim 7, Hayashi et al. teach the total volume of the liquid ethoxylated fatty amine type surfactant and the vegetable oil or the liquid-activity enhancing composition in the range of from 0.01 to 5% by volume, preferably from 0.02 to 2% by volume (page 5, lines 20-23).
Hayashi et al. teach herbicidal oil-based suspension containing compound A (page 7, lines 32-44).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Hayashi et al. do not specifically disclose the polyglycerol esters of vegetable fatty acids with a carbon length of C12-22, the adjuvant comprises 80% by weight of oil component, 10% by weight of alkaline non-ionic surfactant consisting of a mixture of ethoxylate alkyl amines with C13-15 chain length and 10% by weight of a non-ionic surfactant from the group consisting of polyglycerol esters of vegetable fatty acids with a carbon length of C12-22, the foliar spray composition is a stable oil-water emulsion that remains stable for at least 12 hours. It is for this reason Klostermann et al. is added as a secondary reference.
Klostermann et al. teach at least one hydrophobic, at least one partially water-insoluble polyglycerol ester in combination with at least one emulsifier as additives for crop protection formulations for avoiding spray drift (page 2, paragraph 17). Klostermann et al. teach the compositions comprise polyglycerol esters of the general formula 2
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, wherein R’ is a monovalent aliphatic, saturated, or unsaturated hydrocarbon radical having 3 to 39 C atoms, preferably 7 to 21, especially preferably having 9 to 17 carbon atoms (page 3, paragraphs 24 and 25).
Regarding claim 1, Klostermann et al. teach the radicals R of the formula R’-C(O) are preferably independent acyl radicals that include the fatty acids selected from lauric acid (dodecanoic acid ), which is 12 carbons; myristic acid (tetradecanoic acid), which is 14 carbons; stearic acid (octadecanoic acid), which is 18 carbons; arachidic acid (eicosanoic acid), which is 20 carbons; and behenic acid (docosanoic acid), which is 22 carbons and mixtures such as rapeseed oil acids, soya fatty acids, and sunflower fatty acids (page 3, paragraph 31). Klostermann et al. teach that sources of suitable fatty acids or fatty acid esters, especially glycerides include vegetable fat, such as sunflower oil, rapeseed oil, linseed oil, and soya oil (page 4, paragraph 33). Klostermann et al. teach the emulsifiers include ethoxylated amines (page 4, paragraph 41). The concentration of the emulsifier in the composition is preferably 5 to 40 % by weight (page 4, paragraph 44).
Regarding claim 6, Klostermann et al. teach preferred active substances include sulphonylureas (page 5, paragraph 59).
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 Hayashi et al. and Klostermann et al. and use polyglycerol esters of vegetables fatty acids with a carbon chain length of C12-22. Hayashi et al. teach a method for activity-enhancing a herbicidal composition containing at least one sulfonylurea type herbicidal active ingredient selected from the group consisting of N-[(4,6-dimethoxypyrimidin-2-yl)aminocarbonyl]-3-dimethylaminocarbonyl-2-pyridinesulfonamide and its salts and methyl 2-[[[4,6-bis(difluoromethoxy)pyrimidin-2-yl]aminocarbonyl]aminosulfonyl]benzoate and its salts which comprises using an ethoxylated fatty amine type surfactant, vegetable oil and/or a mineral oil and other surfactant. Hayashi et al. teach that the other surfactant can be mixtures including ones that comprise polyglycerol esters of fatty acids. One of ordinary skill in the art would have been motivated to use a known surfactant such as polyglycerol esters of vegetables fatty acids with a carbon chain length of C12-22 because Klostermann et al. teach that a hydrophobic, at least partially water-soluble polyglycerol ester in combination with at least one emulsifier provide crop protection formulations. Klostermann et al. further teach that polyglycerol esters that have 3 to 39, preferably 7 to 21, and especially 9 to 17 carbon atoms when combined with at least one emulsifier for crop protection formulations for avoiding spray drift. The R radicals of the formula R’-C(O) are preferably independent acyl radicals that include the fatty acids selected from lauric acid (dodecanoic acid ), which is 12 carbons; myristic acid (tetradecanoic acid), which is 14 carbons; stearic acid (octadecanoic acid), which is 18 carbons; arachidic acid (eicosanoic acid), which is 20 carbons; and behenic acid (docosanoic acid), which is 22 carbons and mixtures such as rapeseed oil acids, soya fatty acids, and sunflower fatty acids. Based on these teachings one of ordinary skill in the art would have been motivated to use any of the polyglycerol esters of vegetable fatty acids with a carbon chain length of C12-22 taught by Klostermann et al. in the formulations taught by Hayashi et al., with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
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 Hayashi et al. and Klostermann et al. to determine the optimal weight percentage of the ingredient of the adjuvant composition. Hayashi et al. teach to prepare the herbicidal oil-based suspension containing compound A, preferably 2 to 6 parts by weight of compound A, preferably 19 to 85 parts by weight of the vegetable oil and/or mineral oil, preferably 8 to 15 parts by weight of the other surfactant and preferably 7 to 45 parts by weight of the ethoxylated fatty amine type surfactant, when the whole weight of the herbicidal oil-based suspension or the activity-enhances herbicidal oil-based suspension is calculated as 100 parts by weight. One of ordinary skill in the art would have been motivated to use the teachings of Hayashi et al. to determine the amount of each component to use in the adjuvant composition especially since Hayashi et al. teach the oil component is preferably 19 to 85 parts by weight, 80% falls within the range taught by Hayashi et al. Likewise, since Hayashi et al. teach the ethoxylated fatty amine type surfactant, which is exemplified as coco amine ethoxylate is preferably 7 to 45 weight percent, 10% by weight of alkaline non-ionic surfactant consisting of ethoxylated alkyl amines with a C13-15 alkyl chain, falls within the taught range. Furthermore, Hayashi et al. teach the other surfactant, which is exemplified by a mixture of polyoxyethylene nonylphenyl ether, dialkylsulfosuccinate, polyoxyethylene hydrogenated castor oil and polyglycerol esters, is preferably 8 to 15 parts by weight, 10% by weight of the other surfactant falls within the taught range. In addition, the adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references) 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.
Regarding the limitation of the foliar spray composition is a stable oil-water emulsion that remains stable for at least 12 hours and biostatic for at least 12 months in the claimed temperature range, Hayashi et al. teach a method for activity-enhancing a herbicidal composition containing at least one sulfonylurea type herbicidal active ingredient selected from the group consisting of N-[(4,6-dimethoxypyrimidin-2-yl)aminocarbonyl]-3-dimethylaminocarbonyl-2-pyridinesulfonamide and its salts and methyl 2-[[[4,6-bis(difluoromethoxy)pyrimidin-2-yl]aminocarbonyl]aminosulfonyl]benzoate and its salts which comprises using an ethoxylated fatty amine type surfactant, vegetable oil and/or a mineral oil and other surfactant. Hayashi et al. teach that the other surfactant can be mixtures including ones that comprise polyglycerol esters of fatty acids. It would have been obvious to one of ordinary skill in the art that Hayashi et al., as modified by Klostermann et al., would possess the stability profile of the claimed invention, without evidence to the contrary, including stability for at least 12 hours and being biostatic and stable for at least 12 months in the temperature from -10˚C to +54˚C. In addition, 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 January 12, 2026 have been fully considered but they are not persuasive. Applicant argues that Klostermann teaches about the adjuvant with anti-drift properties. Applicant argues that the distinctive features present in the claimed invention is presence in composition of a vegetable oil or a fatty alkyl ester as an oil component and specific ethoxylated amines as non-ionic surfactant in combination with an additional surfactant from the group of polyglycerol esters. Applicant argues that the effect of these distinctive features is obtaining an adjuvant with excellent properties-that is a clear, homogeneous and storage-stable formulation which allows for the creation of a homogeneous, long-lasting formulation of oil-in-water emulsion spraying liquid suitable for use in chemical plant protection in agrochemicals. Applicant argues that unexpectedly, the addition of an additional surfactant from the group of polyglycerol esters of fatty acids to the adjuvant made it possible to significantly improve its rheological and functional properties. Applicant argues that the person of ordinary skill in the art would not find in Klostermann any teaching about the homogeneity, storage-stability and formation of long-lasting formulation of oil-in-water emulsion spraying liquid.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). The primary reference is Hayashi et al. Klostermann et al. is the secondary reference. Hayashi et al. teach a method for activity-enhancing a herbicidal composition containing at least one sulfonylurea type herbicidal active ingredient selected from the group consisting of N-[(4,6-dimethoxypyrimidin-2-yl)aminocarbonyl]-3-dimethylaminocarbonyl-2-pyridinesulfonamide and its salts and methyl 2-[[[4,6-bis(difluoromethoxy)pyrimidin-2-yl]aminocarbonyl]aminosulfonyl]benzoate and its salts which comprises using an ethoxylated fatty amine type surfactant, vegetable oil and/or a mineral oil and other surfactant. Hayashi et al. teach that the other surfactant can be mixtures including ones that comprise polyglycerol esters of fatty acids. One of ordinary skill in the art would have been motivated to use a known surfactant such as polyglycerol esters of vegetables fatty acids with a carbon chain length of C12-22 because Klostermann et al. teach that a hydrophobic, at least partially water-soluble polyglycerol ester in combination with at least one emulsifier provide crop protection formulations. Klostermann et al. further teach that polyglycerol esters that have 3 to 39, preferably 7 to 21, and especially 9 to 17 carbon atoms when combined with at least one emulsifier for crop protection formulations for avoiding spray drift. The R radicals of the formula R’-C(O) are preferably independent acyl radicals that include the fatty acids selected from lauric acid (dodecanoic acid ), which is 12 carbons; myristic acid (tetradecanoic acid), which is 14 carbons; stearic acid (octadecanoic acid), which is 18 carbons; arachidic acid (eicosanoic acid), which is 20 carbons; and behenic acid (docosanoic acid), which is 22 carbons and mixtures such as rapeseed oil acids, soya fatty acids, and sunflower fatty acids. The examiner maintains that based on these teachings one of ordinary skill in the art would have been motivated to use any of the polyglycerol esters of vegetable fatty acids with a carbon chain length of C12-22 taught by Klostermann et al. in the formulations taught by Hayashi et al., with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
Regarding Applicant arguments and assertions that the effect of these distinctive features is obtaining an adjuvant with excellent properties-that is a clear, homogeneous and storage-stable formulation which allows for the creation of a homogeneous, long-lasting formulation of oil-in-water emulsion spraying liquid suitable for use in chemical plant protection in agrochemicals, the reason or motivation to modify a reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. While there must be motivation to make the claimed invention, there is no requirement that the prior art provide the same reason as the applicant to make the claimed invention.
Applicant argues that Hayashi discloses a technique to herbicidally activity-enhance a herbicidal composition of certain sulfonylurea type herbicide active ingredient and its salts by using an ethoxylated fatty amine type surfactant and a vegetable oil/and or a mineral oil. Applicant argues Hayashi discloses a method for enhancing weed activity, a weed control composition for enhancing activity and an enhanced activity composition. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). As noted hereinabove, the primary reference is Hayashi et al. and Klostermann et al. is the secondary reference. Hayashi teaches a composition that comprises an oil component, a C15 ethoxylated amine and a surfactant blend that contains a polyglycerol ester of fatty acids. The compositions also contain a sulfonylurea herbicide, as instantly claimed in dependent claim 6. Regarding Applicant arguments and assertions that the effect of these distinctive features is obtaining an adjuvant with excellent properties-that is a clear, homogeneous and storage-stable formulation which allows for the creation of a homogeneous, long-lasting formulation of oil-in-water emulsion spraying liquid suitable for use in chemical plant protection in agrochemicals, the reason or motivation to modify a reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. While there must be motivation to make the claimed invention, there is no requirement that the prior art provide the same reason as the applicant to make the claimed invention.
Applicant indicates that a huge number of possible surfactants make the number of possible combinations overwhelming and virtually impossible to test routinely. Applicant provides data from laboratory tests directed to improving the quality of the emulsion and that 15 other surfactants were tested but none of them allowed to obtain the desired effect such in formation of a stable and long-lasting emulsion. Applicant references Annex 1. In response to Applicant’s argument, the data presented in Annex 1 has not been considered because it was not presented in the original disclosure. Applicant’s evidence is not acceptable because it is not in proper declaration format. If Applicant wants this evidence to be considered, then it has to be within the provisions of 1.132.
Regarding Applicant’s argument of the unexpected effect described in the present invention could not be simply deduced from Hayashi, evidence of nonobviousness must be commensurate in scope with that of the claimed subject matter. Applicant argues that unexpectedly, the addition of an additional surfactant from the group of polyglycerol esters of fatty acids to the adjuvant according to the invention In response, the data in example I indicates that 70% by weight of rapeseed oil fatty acid methyl ester, 15% by weight of alkaline non-ionic surfactant consisting of a mixture of ethoxylated alkyl amines with a C13-15 alkyl chain length and HLB number of 15 and 15% by weight of non-ionic surfactant from the group of polyglycerol esters of vegetable fatty acid with a carbon chain length of C12-22 when introduced into water forms an oil-water emulsion stable for 12 hours (data in Example IV). The data in Example II indicates that 80% by weight of rapeseed oil fatty acid methyl ester, 10% by weight of alkaline non-ionic surfactant consisting of a mixture of ethoxylated alkyl amines with a C13-15 alkyl chain length and HLB number of 15 and 10% by weight of non-ionic surfactant from the group of polyglycerol esters of vegetable fatty acids with a carbon length of C12-C22 when introduced into water formed an oil-water emulsion stable for 12 hours (data in Example IV). The data in Example III indicates that 90% by weight of rapeseed oil fatty acid methyl ester, 5% by weight of alkaline non-ionic surfactant consisting of a mixture of ethoxylated alkyl amines with a C13-C15 chain length and HLB number of 15 and 5% by weight of non-ionic surfactant from the group of polyglycerol esters of vegetable fatty acids with a carbon chain length of C12-22 when introduced into water formed an oil-water emulsion stable for 12 hours (data in Example IV).
While the data does show increased stability over a 12 hour period in example IV, it also cannot be determined if the use of any ethoxylated alkyl amine with a C13-C15 alkyl chain combined with any polyglycerol ester of vegetable fatty acids with a carbon length of C12-22, at any weight percent, as claimed in independent claim 1, will provide the same stability results, when combined with rapeseed oil fatty acid methyl ester claimed. While Applicant does not have to show examples of rapeseed oil fatty acid methyl ester in combinations with all ethoxylated alkyl amine with a C13-15 alkyl chain, at any weight precent, combined with any polyglycerol ester of vegetable fatty acids with a carbon length of C12-22, at any weight precent, Applicant has not proven to provide a trend in the exemplified data which would allow the skilled artisan to reasonably extend the probative value thereof. See In re Kollmann and Irwin, 201 USPQ 193 (C.C.P.A. 1979). Applicant has not established nonobvious evidence that is commensurate in scope with that of the claimed subject matter
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