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 .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 07/09/2025 has been entered.
Claim Status
Claims 1-2, and 4-11 are pending.
Claims 1-2, and 4-10 are currently amended.
Claim 11 is newly added.
Claim 11 is withdrawn and claims 5-9 are previously withdrawn.
Claim 3 is previously canceled.
Claims 1-2, 4, and 10 have been examined.
Claims 1-2, 4, and 10 are rejected.
Election/Restrictions
Newly submitted claim 11 is directed to an invention that is independent or distinct from the invention originally claimed for the following reasons:
Claims 1-2, 4, and 10 are directed to a fungicidal formulation comprising polyoxoniobates combined with cations of Cu2+, in a ratio between 1:1, 1:2, or 2:1 of number of niobates ions to cation atoms. Newly added claim 11 is directed to process of treating plants comprising dripping the fungicidal formulation according to claim 1 on leaves of the plants to prevent or reduce proliferation of fungi. Claims 1-2, 4, and 10 are directed toward the product and Claim 11 is directed toward the process of using the product without further limiting steps.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 11 is withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
New 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 1-2, 4, and 10 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 1 has been amended to recite “cations of Cu2+ cations.” The phrase “cations of Cu2+ cations” is unclear and lacks a definite meaning. The term appears to be erroneous or redundant as “cations” are already defined as positively charged ions, and the construction of “cations of Cu2+ cations“ is chemically ambiguous.
Claim 4 recites the limitation "the Cu2+ salts" in line 1. There is insufficient antecedent basis for this limitation in the claim. Claim 4 depends from claim 1 which does not recite Cu2+ salts.
Claims 2 and 10 are rejected in view of their dependency on claim 1.
New 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.
This is a new claim rejection in view of the amendments to the claims.
Claim(s) 1, 2, 4, and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Alves De Oliveira et al., (BR102018076494A2, July 07, 2020) (hereinafter Alves De Oliveira).
Alves De Oliveira discloses a process for obtaining nanogel from niobium clusters, which is characterized by using niobium compounds for the generation of water-soluble clusters with a high negative charge. The formation of the nanogel occurs using commercial Nb2O5 (i.e., niobium oxide). The nanogel can be obtained by nanogelification of the solution of the niobium cluster by reaction with hydrogen peroxide and with different cations, such as calcium and copper (Abstract). Copper is a nutrient in soils ([008]). The novelty is based on the use of commercial or synthetic niobium ammoniacal oxalate, treated with hydrogen peroxide or organic peroxides to generate anionic aggregates or clusters, with a structure formed by peroxo niobium species (V) connected with oxygen atoms (i.e., polyoxoniobates) ([021]). This anionic species of niobium (V) has a high negative charge per cluster and therefore has a high tendency to bind to additional metal centers, effect ion exchange and adsorption of cations (micro or macronutrients) dissolved in water and the niobium cluster releases large amounts of nutrient cations into the soil ([022]). In the process for obtaining the Nb nanogel, the peroxo complexes of transition metals are obtained using friendly solvents, including water and H2O2. The Nb nanogel was obtained by the reaction of ammoniacal oxalate of commercial niobium, with peroxides. The solutions obtained showed a yellowish color, indicating the formation of the aqueous peroxo group (Nb-O-O), which will promote the formation of the cluster. This species dissolved in an aqueous phase and from this yellowish solution, with a high negative charge, a nanogel is obtained by adding metal ions ([036]). In a further embodiment, the nanogel was obtained using 15.0 mL of the precursor solution and 3 drops of the 1.0 mol / L calcium chloride or zinc solution and the solution acquired immediate nanogel consistency. ([040]).
Alves De Oliveira discloses compositions containing polyoxoniobates ([021]) and copper cations (Abstract). Together these would provide a composition as claimed instantly. The prior art is not anticipatory insofar as these combinations must be selected from various lists/locations in the reference. It would have been obvious, however, to make the combination since all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP 2143(I)(A).
Regarding the limitation of claim 1 reciting “A fungicidal formulation,” if the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction, See MPEP 2111.02. Accordingly, the limitation of “A fungicidal formulation,” is merely a recitation of the purpose or intended use of the invention, and the invention is disclosed by Alves De Oliveira in the cited prior art.
Regarding the limitation of claim 1 reciting a ratio between 1:1, 1:2, or 2:1 of number of niobates ions to cation atoms,” as discussed above, Alves De Oliveira teaches that the anionic species of niobium (V) has a high tendency to effect ion exchange and adsorption of cations (micro or macronutrients) dissolved in water, the niobium cluster releases large amounts of nutrient cations into the soil, and that copper is a cation and soil nutrient. Thus, it would have taken no more than the relative skills of one of ordinary skill in the art through routine experimentation to have arrived at an amount of cations depending on the desired amount of nutrient released into the soil and an amount of niobate ions necessary to adsorb the cations. After arriving at these amounts, a ratio between these two amounts is obtained. Therefore, since the ratio is based on desired effects, the claimed ratio would have been obvious based on the desired effects of these compounds. Where 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. See MPEP 2144.05(II)(A).
Regarding claims 2 and 10, as discussed above, Alves De Oliveira teaches the formulation comprising polyoxoniobates combined with cations of Cu2+ according to claim 1. Even 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), see MPEP 2113. The final product disclosed in the instant application holds no patentably distinct structural differences from the final product disclosed by Alves De Oliveira.
Regarding claim 4, as discussed above, Alves De Oliveira teaches a nanogel can be obtained by nanogelification of the solution of the niobium cluster by reaction with hydrogen peroxide and different cations, such as calcium and copper. While Alves De Oliveira is silent to a Cu2+ salt, as discussed above, Alves De Oliveira discloses wherein the nanogel was obtained using the precursor solution and calcium chloride and the solution acquired immediate nanogel consistency. Accordingly, because Alves De Oliveira teaches nanogelification of the solution by reaction with different cations including calcium and copper and exemplifies the use of calcium chloride to acquire immediate nanogel consistency, it would have been obvious to one of ordinary skill in the art to use the Cu2+ salt copper chloride to produce the nano gel of Alves De Oliveira, since calcium and copper are suitable cations for gelification and the chloride salt is a suitable salt form used in the production of the nanogel.
Response to Applicant’s Arguments
The rejection of claim 2 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph is withdrawn in view of amendments to the claims.
The rejection of claim(s) 1-2, 4 and 10 under 35 U.S.C. 102(a)(1) as being anticipated by US 20200028178 A1 to He et al, 2020, (cited by examiner on Form 892 dated 12/02/2024) hereinafter He is withdrawn in view of amendments to the claims.
Conclusion
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/S.J.K./ Examiner, Art Unit 1614
/ALI SOROUSH/ Supervisory Patent Examiner, Art Unit 1614