DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendments
Status of Claims
The amendment, filed on 10 November 2025, is acknowledged.
Claims 1-2, 5-6, 16, 18, 21-22, 24, 26, 43-44, 48, and 57 have been amended.
Claims 43, 48-49, 55, 58-59, 61, and 65 were previously withdrawn from further consideration in the non-final Office Action mailed on 9 July 2025, as being drawn to a nonelected invention or nonelected species.
Claims 1-2, 5-6, 16, 18, 21-22, 24, 26, 44, and 57 are pending and under consideration in the instant Office Action, to the extent of the following previously elected species:
the specific polycation in the polyelectrolyte complex is chitosan;
the specific polyanion in the polyelectrolyte complex is lignosulfonate;
the specific dithiocarbamate fungicide in the aqueous concentrate composition is mancozeb;
the specific aqueous carrier in the aqueous concentrate composition is water;
the specific agriculturally acceptable additive in the aqueous concentrate composition is polyalkylene oxide block copolymer; and
the specific dispersant in the aqueous concentrate composition is modified styrene acrylic polymer.
Response to Remarks
Applicant’s response, filed on 10 November 2025, to the maintained restriction requirement has been fully considered but is not persuasive. Applicant states in para. 2 of pg. 13 of the Remarks that Example 7 does not disclose a dithiocarbamate fungicide. This is correct and the referenced section of the non-final Office Action should have read Examples 7-8, as in the rejection under 35 U.S.C. § 103, which teaches the following treatment in Example 8:
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As shown above, Treatment 4 contains Dithane®, which contains 75% mancozeb (a dithiocarbamate fungicide) in combination with CitoCal, a polyelectrolyte complex that is described in Example 7:
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The restriction requirement is therefore still considered proper.
Objections Withdrawn
Objections to Claims
Applicant’s amendment to claims 2, 5-6, 16, 21-22, 24, 26, and 44 submitted on 10 November 2025, has overcome the objection to the claims set forth in the Office Action mailed on 9 July 2025. Accordingly, the relevant objection is withdrawn.
Rejections Withdrawn
Rejections pursuant to 35 U.S.C. § 112
The rejection of claims 5-6 under 35 U.S.C. § 112 is withdrawn in view of Applicant’s amendments to the claims.
Rejections pursuant to 35 U.S.C. § 103
The rejection of claims 1-2, 5-6, 16, 18, 21-22, 24, 26, 44, and 57 under 35 U.S.C. § 103 is withdrawn in view of Applicant’s amendments to the claims and in favor of the rejection made again below.
New Grounds of Rejection
Claim Rejections - 35 USC § 112
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.
Claims 1-2, 5-6, 16, 18, 21-22, 24, 26, 44, and 57 are 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 claims contain 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.
Claims 1 and 57 were amended to recite “wherein the composition/delivery system is free of alkyl naphthalene sulphonate”. The response did not point out where support for the amended claims could be found in the originally filed disclosure. Although the PTO has the initial burden of presenting evidence or reasons why persons skilled in the art would not recognize in the disclosure a description of the invention defined by the claims, when filing an amendment an applicant should show support in the original disclosure for new or amended claims. See MPEP 714.02 and 2163.06 (“Applicant should therefore specifically point out the support for any amendments made to the disclosure.”). There is insufficient support for the sub-genus “alkyl naphthalene sulphonate” in this limitation in the original disclosure. In para. [0285] and [0292] of the instant specification, Applicant disclosed sodium alkyl naphthalene sulphonate (as sodium alkyl naphtalene sulfonate) and in para. [0085] disclosed sodium salts of naphthalene sulfonate condensates, which is considered a species within the broader sub-genus “alkyl naphthalene sulphonates”. Applicant may overcome this rejection by amending the claims to narrow the scope to sodium alkyl naphthalene sulphonates.
In addition, the original disclosure discussed sodium alkyl naphthalene sulphonates in the context of preferred polymers for use in the claimed compositions (see, for example, para. [0258]). There is insufficient support for the negative limitation in instant claims 1 and 57, and the remarks filed on 10 November 2025, do not point to specific support in the specification. Claims 2, 5-6, 16, 18, 21-22, 24, 26, and 44 depend from claim 1 and therefore also contain new matter.
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 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.
Claims 1-2, 5-6, 16, 18, 21-22, 24, 26, 44, and 57 are rejected under 35 U.S.C. 103 as being unpatentable over Van Der Krieken (WIPO International Publication No. WO 2013/133705 A1, published on 12 September 2013, provided by Applicant in IDS) in view of Fraley et al. (U.S. Patent No. 5,667,795, published on 16 September 1997, hereafter referred to as Fraley).
Van Der Krieken teaches a composition comprising a polyelectrolyte complex and at least one biocide, methods of manufacturing said compositions, and uses of the composition to protect agricultural plants against pathogens (Abstract). Biocides are taught to be effective agents in protecting plants against pathogenic microorganisms, but have possible associated negative impacts on the environment and human health (pg. 1, lines 15-21). To mitigate these negative impacts, reduced quantities of biocides should be used in agricultural compositions, which Van Der Krieken teaches in their compositions (pg. 1, line 23 - pg. 2, line 8). Surprisingly, the inventors found that the “polyelectrolyte complex dramatically improved the protective effect of the biocide against a pathogen, in comparison with the same biocide without said polyelectrolyte complex”, which allows for a lower quantity of biocide to be used (pg. 2, lines 11-19).
The polyelectrolyte complex of the invention is taught to comprise a polyanion and polycation, the former preferably being lignosulfonate and the latter preferably being chitosan (claims 1-4 and pg. 2, line 28 - pg. 3, line 7). The biocide is taught to preferably be a fungicide and the form of the composition is taught to be an aqueous composition or suspension (pg. 3, lines 9-12), preferably a suspension concentrate or dispersion concentrate (pg. 20, line 34 - pg. 21, line 8). The polyanion is present in the composition in an amount of 0.1-60% w/v and the polycation in an amount of 0.1-10% w/v, significantly overlapping with the ranges recited in instant claim 5, with a ratio between the two ions of ~1:2 to 60:1 w/w (pg. 3, lines 21-25 and claim 10). The biocide is taught to be present in an amount of 0.1-90% w/v (claim 5), encompassing the range recited in instant claim 2, and in some embodiments the fungicide is mancozeb (pg. 11, lines 4-17 and Examples 7-8). In Examples 7-8, a composition called “CitoCal” comprising a polyelectrolyte complex, which was composed of lignosulfonate and chitosan, water, xanthan gum, and surfactants is taught (Table 6), mixed with a 75% w/w mancozeb solution to create a “tank mix”, which then was delivered to plants via a spraying system with three spray nozzles. The compositions taught by Van Der Krieken do not contain an alkyl naphthalene sulphonate.
Finally, Van Der Krieken teaches the composition to comprise a dispersing or wetting agent “known to a skilled person such as…a styrene acrylic polymer…and/or a wetting agent such as di-octylsuccinate, polyoxyethylene/polypropylene, and tri-stearyl sulphonate/phosphate, is preferably present” (pg. 17, line 30 - pg. 18, line 2). The “styrene acrylic polymer” is interpreted as being the same as the elected “modified styrene acrylic polymer” and the “polyoxyethylene/polypropylene” is interpreted as being a PEO/PPO block copolymer, falling within the genus of polyalkylene oxide block copolymer. A thickening agent may also be present in the composition, in some embodiments being xanthan gum, and is “preferably present in an amount between 0-10% w/v” (pg. 17, lines 17-24).
Van Der Krieken does not teach a motivation for selecting a nonionic surfactant of the genus polyalkylene oxide block copolymer as the agriculturally acceptable additive nor the concentration of the block copolymer. These deficiencies are offset by the teachings of Fraley.
Fraley teaches agricultural compositions comprising the pesticide chloronthalonil, zinc oxide, and other components (Abstract and Summary of Invention, pg. 2). One of the agricultural compositions taught by Fraley is an aqueous concentrate which comprises, in addition to a pesticide and zinc oxide, a heteropolysaccharide gum and nonionic surfactant, among other components (column 2, lines 25-47). The pesticide may be a fungicide, and Fraley teaches that it is important for the pesticide and zinc oxide to be 1-10 microns “so that the greatest surface area per unit weight of formulation will be provided, thereby allowing the pesticide and zinc oxide to be most homogenously suspended” and that “pesticides which are extremely finely-divided provide greater biological activity per unit area of plant tissue” (column 2, line 48 - column 3, line 14).
The heteropolysaccharide gum and nonionic/anionic surfactant in the above composition are taught to be in a concentration ratio to each other and the pesticide that is critical “to obtain compositions with the desire[d] storage stability and water-dispersibility” (column 3, lines 42-50). The heteropolysaccharide gum is taught to commonly be known in the art as “xanthan gum” (column 3, lines 56-59) and the preferred nonionic surfactant is a polyalkylene oxide block copolymer such as ethoxylated polyoxypropylene glycols (column 4, lines 5-19). Cationic salts of lignosulfonates present in concentrates at concentrations of 0.1-4.0% are taught to “improve resuspensibility and spontaneity of the suspension concentrate” (column 4, lines 45-47). Finally, the concentration of the xanthan gum is taught to be 0.02-1.0% and the nonionic surfactant is taught to be 1.0-10%, identical to the range recited in instant claim 24 (column 4, lines 48-52).
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, to modify the invention of Van Der Krieken with the teachings of Fraley to arrive at the invention of instant claims 1-2, 5-6, 16, 18, 21-22, 24, 26, 44, and 57 because combining prior art elements according to known methods yields predictable results. The ordinary skilled artisan would be motivated to use a polyalkylene oxide block copolymer as a nonionic surfactant additive in the invention of Van Der Krieken because Fraley teaches that its use alongside xanthan gum, which Van Der Krieken teaches as a component in their composition, produces a composition with desirable storage stability and water-dispersibility characteristics. The necessary concentration of the nonionic surfactant is not taught by Van Der Krieken but is taught by Fraley to be 1.0-10%, which an artisan would be motivated to use to supplement missing information. As a result, there is a reasonable expectation of success in arriving at the invention of instant claims 1-2, 5-6, 16, 18, 21-22, 24, 26, 44, and 57 in view of the teachings of Van Der Krieken and Fraley.
Response to Arguments
The Applicant’s arguments, filed on 10 November 2025, have been fully considered but are not persuasive.
Applicant’s Declaration, filed on 10 November 2025, regarding the stability of compositions containing mancozeb and an alkyl naphthalene sulphonate, is acknowledged. In particular, Table 3 and the succeeding para. on pg. 7 are relevant in which Dr. Van Der Krieken presents data that shows instability in compositions containing Morwet D425 and mancozeb. However, this declaration does not overcome the rejection above, as the prior art does not teach the inclusion of alkyl naphthalene sulphonates, and does not allege unexpected results, making the argument against the rejection under 35 U.S.C. § 103 unpersuasive.
In the section titled Applicant’s Reply spanning pg. 15-16 of the Remarks, as well as in Exhibits 1 and 2, Applicant argues that the product Dithane® from Dow AgroSciences contains the alkyl naphthalene sulfonate diisopropylnaphthalene sulfonate, which negatively impacts the stability of a solution comprising a modified acrylic polymer and polyalkylene oxide block copolymer.
However, Van Der Krieken only teaches the use of Dithane® as an example of a commercially available source of mancozeb. The fungicide taught by Van Der Krieken to be used in their composition is the dithiocarbamate compound mancozeb itself, not the commercially available product (see pg. 10, line 7, pg. 11, line 12, and pg. 15, line 10). Further, in Examples 8 and 12, Van Der Krieken specifically states that the synergistic effect observed with the polyelectrolyte complex of chitosan and Ca-lignosulfonate is from the active ingredient mancozeb, not the Dithane® product. Van Der Krieken does not teach the inclusion of an alkyl naphthalene sulfonate as a surfactant, wetting agent, or dispersant. The Applicant’s argument is against the composition of the commercially available product Dithane®, rather than the teachings of Van Der Krieken, and is therefore found unpersuasive.
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.
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.
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/S.J.S./
Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619