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 .
Note: This office action is made non-final to make a correction of an omitted 35 USC 112 rejection.
Formal Matters
Applicant’s arguments along with the declaration by Gilad Silbert in the reply filed on June 18, 2025 are acknowledged. Claims 1, 3, 12, 27, 31, 37-38, 44, and 63-72 are pending. Claims 1, 3, 12, 27, 31, 37, and 63-72 are under consideration in the instant office action. Claims 38 and 44 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention and/or species, there being no allowable generic or linking claims. Claims 70-72 are newly added. Claims 2, 4-11, 13-26, 28-30, 32-36, 39-43, and 45-62 are cancelled. Applicant’s arguments and new claims did not overcome the rejections under 35 USC 103 for reasons set forth in the previous office action and herein below.
New Rejections
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, 27, 31, and 37 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.
Claims 1 and 27 read in relevant parts "the hydrophilic charged stabilizing moiety" (claim 1, lines 13-14, 16-17 and 21-23; claim 27, lines 14 and 17-18), and "the stabilizing moiety" (claim 37, lines 4, 7 and 9), however, base claim 1 recites "at least one hydrophilic charged stabilizing moiety" (lines 9-10), which encompasses multiple stabilizing moieties. Because of the multiplicity (i.e., at least one hydrophilic charged stabilizing moiety), it is unclear whether the singular reference, i.e., "the hydrophilic charged stabilizing moiety" or "the stabilizing moiety", are intended to refer to just one, more than one, or all of the stabilizing moieties, i.e., do the further limitations apply to just one, more than one or all of the stabilizing moieties. A similar issue exists with "the monomers" in the hydrophilic charged stabilizing moiety in claim 27 (lines 17-18), whereas base claim 1 recites that the stabilizing moieties comprise "at least one charged monomer", which encompasses multiple monomers, making it unclear whether one, more than one or all of the monomers are being referenced. Amending the claims to recite "the at least one hydrophilic charged stabilizing moiety", and "the at least one charged monomer" consistent with base claim 1 would provide proper antecedent basis.
Claim 31 recites "the hydrophobic monomers", however, base claim 1 does not appear to recite any hydrophobic monomers making it unclear what is being referenced in claim 31.
Rejections Maintained
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103(a) 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, 3, 12, 27, 31, 37, and 63-72 are rejected under 35 U.S.C. 103 as being unpatentable over Kober et al. (US 2009/0170704, IDS reference).
Applicant Claims
Applicant claims an agricultural material.
Determination of the Scope and Content of the Prior Art (MPEP §2141.01)
Kober et al. teach a solid plant protection compositions comprising: a) liquid or low melting point polyalkoxylate; and b) a carrier based on relatively high molecular weight sulfonate, wherein (i) the weight ratio of liquid or low melting point polyalkoxylate to plant protection active agent is at least 1:2; (ii) the proportion of liquid or low melting point polyalkoxylate, based on the total weight of the relatively high molecular weight sulfonates, is at least 30% by weight; and (iii) the weight ratio of liquid or low melting point polyalkoxylate to relatively high molecular weight sulfonate is at most 3:1. The invention also relates to processes for their preparation and the use of the plant protection compositions for the treatment of plants and their habitat as well as corresponding processes, and also spray mixtures comprising such a plant protection composition (see abstract). Solid plant protection compositions, in particular those based on dust-free solid granules, offer considerable advantages in comparison with liquid plant protection compositions, which affects use, storage, transportation, stability and waste disposal of packaging materials. However, the low melting point of the abovementioned alkoxylates, which leads to problems on incorporation in solid plant protection compositions, is frequently disadvantageous. Thus, conventional solid plant protection compositions can only include small amounts of liquid, oily or low melting point additives, such as those represented by the alkoxylates, since otherwise agglutination and aggregation of the granules occur. Typically, less than 15% by weight merely of such additives can be added without harming the storage stability (paragraph 12). An object of the present invention is accordingly a solid plant protection composition comprising a plant protection active agent which comprises:
a) liquid or low melting point polyalkoxylate; and b) a carrier based on relatively high molecular weight sulfonate, wherein (paragraph 24) (i) the weight ratio of liquid or low melting point polyalkoxylate to plant protection active agent is at least 1:2; (paragraph 25) (ii) the proportion of liquid or low melting point polyalkoxylate, based on the total weight of the relatively high molecular weight sulfonate, is at least 30% by weight; (paragraph 26) and (iii) the weight ratio of liquid or low melting point polyalkoxylate to relatively high molecular weight sulfonate is at most 3:1 (paragraph 27). An additional embodiment of relatively high molecular weight sulfonates provides copolymers CP synthesized from ethylenically unsaturated monomers M, the monomers M constituting the copolymer CP comprising ) at least one monoethylenically unsaturated monomer M1 exhibiting at least one sulfonic acid group, and (paragraph 139) ) at least one neutral monoethylenically unsaturated monomer M2. The copolymers CP are generally "random copolymers", i.e. the monomers M1 and M2 are randomly distributed along the polymer chain. In principle, alternating copolymers CP and block copolymers CP are also suitable. The monomers M constituting the copolymer CP comprise according to the invention at least one monoethylenically unsaturated monomer M1 exhibiting at least one sulfonic acid group. The proportion of the monomers M1 to the monomers M in this context generally amounts to from 1 to 90% by weight, frequently from 1 to 80% by weight, in particular from 2 to 70% by weight and especially from 5 to 60% by weight, based on the total amount of monomers M. In this context, all monoethylenically unsaturated monomers exhibiting at least one sulfonic acid group are suitable in principle as monomers M1. The monomers M1 can exist both in their acid form and in the salt form. The parts by weight given are based in this context on the acid form (paragraphs 141-144).
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Examples of monomers M1 of the general formula (V) are 2-acrylamido-2-methylpropanesulfonic acid, 2-methacrylamido-2-methylpropanesulfonic acid, 2-acrylamidoethanesulfonic acid, 2-methacrylamidoethanesulfonic acid, 2-acryloyloxyethanesulfonic acid, 2-methacryloyloxyethanesulfonic acid, 3-acryloyloxypropanesulfonic acid and 2-methacryloyloxypropanesulfonic acid (paragraph 151). In addition to the monomers M1, the monomers M constituting the copolymer CP comprise at least one neutral monoethylenically unsaturated monomer M2. "Neutral" means that the monomers M2 possess no functional group which reacts as an acid or base under aqueous conditions or is present in ionic form. The total amount of the monomers M2 generally comes to from 10 to 99% by weight, frequently from 20 to 99% by weight, in particular from 30 to 98% by weight and especially from 40 to 95% by weight, based on the total weight of the monomers M (paragraph 152). Examples of monomers M2 are those with limited solubility in water, e.g. a solubility in water of less than 50 g/l and in particular of less than 30 g/l (at 20.degree. C. and 1013 mbar), and those with an elevated solubility in water, e.g. a solubility in water .gtoreq.50 g/l, in particular .gtoreq.80 g/l (at 20.degree. C. and 1013 mbar). Monomers with limited solubility in water are also described subsequently as monomers M2a. Monomers with elevated solubility in water are also described subsequently as monomers M2b (paragraph 153). The monomers M2a are preferably chosen from vinylaromatic monomers, esters of acrylic acid with C.sub.2-C.sub.10-alkanols, such as ethyl acrylate, n-butyl acrylate, 2-butyl acrylate, isobutyl acrylate, tert-butyl acrylate or 2-ethylhexyl acrylate, esters of acrylic acid with C.sub.4-C.sub.10-cycloalkanols, such as cyclohexyl acrylate, esters of acrylic acid with phenyl-C.sub.1-C.sub.4-alkanols, such as benzyl acrylate, 2-phenylethyl acrylate and 1-phenyl-ethyl acrylate, esters of acrylic acid with phenoxy-C.sub.1-C.sub.4-alkanols, such as 2-phenoxyethyl acrylate, esters of methacrylic acid with C.sub.1-C.sub.10-alkanols, in particular with C.sub.1-C.sub.6-alkanols, such as methyl methacrylate, ethyl methacrylate, n-butyl methacrylate, 2-butyl methacrylate, isobutyl methacrylate, tert-butyl methacrylate or 2-ethylhexyl methacrylate, esters of methacrylic acid with C.sub.4-C.sub.10-cycloalkanols, such as cyclohexyl methacrylate, esters of methacrylic acid with phenyl-C.sub.1-C.sub.4-alkanols, such as benzyl methacrylate, 2-phenylethyl methacrylate and 1-phenylethyl methacrylate, and esters of methacrylic acid with phenoxy-C.sub.1-C.sub.4-alkanols, such as 2-phenoxyethyl methacrylate. In a particularly preferred embodiment, the monomers M2a comprise up to at least 80%, based on the total amount of the monomers M2a, of and in particular exclusively esters of acrylic acid and/or of methacrylic acid with C.sub.1-C.sub.6-alkanols (paragraph 155). Preferably, the monomers M2 comprise at least one of the abovementioned monomers M2a exhibiting, at 20.degree. C. in water, a solubility of less than 50 g/l and in particular of less than 30 g/l. The proportion of the monomers M2a in the monomers M constituting the copolymer CP typically ranges from 10 to 99% by weight, frequently ranges from 20 to 99% by weight, in particular ranges from 30 to 98% by weight and especially ranges from 40 to 95% by weight, based on the total weight of the monomers M (paragraph 157). In a first preferred embodiment of the invention, the monomer M2a is sole or virtually sole monomer M2 and amounts to at least 95% by weight and in particular at least 99% by weight of the monomers M2 9paragraph 158). In a second preferred embodiment of the invention, the monomers M2 comprise, in addition to the monomer M2a, at least one monomer M2b exhibiting, at 20.degree. C. in water, a solubility of at least 50 g/l and in particular of at least 80 g/l. Correspondingly, the monomers M constituting the copolymer CP comprise, in addition to the monomer M1, both at least one of the abovementioned monomers M2a, in particular at least one of the monomers M2a mentioned as preferred, and at least one of the abovementioned monomers M2b, in particular at least one of the monomers M2b mentioned as preferred (paragraph 159). The total amount of the monomers M1+M2b will frequently not exceed 90% by weight, in particular 80% by weight and especially 70% by weight, based on the total amount of the monomers M, and ranges in particular from 10 to 90% by weight, in particular from 20 to 80% by weight and especially from 30 to 70% by weight, based on the total amount of the monomers M. Correspondingly, the monomers M2a frequently come to at least 10% by weight, in particular at least 20% by weight and especially at least 30% by weight, e.g. from 10 to 90% by weight, in particular from 20 to 80% by weight and especially from 30 to 70% by weight, based on the total amount of the monomers M (paragraph 160). In this second particularly preferred embodiment, the monomers M1 preferably come to from 1 to 80% by weight, in particular from 2 to 70% by weight and particularly preferably from 5 to 60% by weight, the monomers M2a preferably come to from 10 to 90% by weight, in particular from 20 to 80% by weight and particularly preferably from 30 to 70% by weight, and the monomers M2b preferably come to from 5 to 89% by weight, in particular from 10 to 78% by weight and particularly preferably from 20 to 65% by weight, based on the total amount of the monomers M. Particular preference is given among these to copolymers CP, the constituent monomers M of which comprise, as monomers M1, at least one monomer of the formula (V), as monomers M2a, at least one monomer chosen from esters of acrylic acid with C.sub.2-C.sub.10-alkanols and esters of methacrylic acid with C.sub.1-C.sub.10-alkanols and, as monomers M2b, at least one monomer chosen from hydroxy-C.sub.2-C.sub.4-alkyl esters of acrylic acid and of methacrylic acid (paragraph 161). In this context, it is particularly preferable for the plant protection composition to comprise at least 15% by weight, preferably at least 25% by weight and in particular at least 30% by weight of relatively high molecular weight sulfonate (paragraph 180). The following are suitable in particular as component (c): c1) surface-active auxiliaries; c2) suspension agents, antifoaming agents, retention agents, pH buffers, drift retardants and other auxiliaries for improving the handleability and/or physical properties of the composition; and c3) chelating agents (paragraph 200-203). The pesticide for use according to the invention is chosen in particular from fungicides (e1), herbicides (e2) and insecticides (e3) (paragraph 0256). Fungicides comprise, for example folpet or thiochlorfenphim etc. (paragraph 257). According to a particular embodiment of the invention, fungicides (e1) comprise: sulfonates, such as captafol, captan, dichlofluanid, folpet or tolylfluanid (paragraph 272). The proportion of the active agent component (e) in the total weight of the composition generally comes to more than 1% by weight, preferably more than 2% by weight and in particular more than 2.5% by weight. On the other hand, the proportion of the component (e) in the total weight of the composition generally comes to less than 50% by weight, preferably less than 40% by weight and in particular less than 35% by weight, based on the total weight of the composition (paragraph 337). In a particular embodiment of the invention, the composition is a particulate solid, in particular a granule or powder. In this context, it is particularly preferable for the granule to be coarse-grained (paragraphs 340-341). The copolymers CP according to the invention are in some cases known from PCT/EP04/011797 or can be prepared according to conventional methods by radical polymerization of the monomers M. The polymerization can be carried out by free radical polymerization or by controlled radical polymerization processes. The polymerization using one or more initiators and can be carried out as solution polymerization, as emulsion polymerization, as suspension polymerization, as precipitation polymerization or as bulk polymerization. The polymerization can be carried out batchwise, semicontinuously or continuously (paragraph 169).
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.012)
Kober et al. teach the claimed invention in obvious manner in terms of the monomer types and their amounts as well as the agricultural active agent and its amounts in its broader teaching. This is further addressed by the prima facie argument set forth below.
Finding of Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the instant invention to produce the instant invention by following the teachings of Kober et al. because Kober et al. teach all of the elements of the claimed invention in its generic teachings. Kober et al. teach a solid plant protection compositions comprising: a) liquid or low melting point polyalkoxylate; and b) a carrier based on relatively high molecular weight sulfonate, wherein (i) the weight ratio of liquid or low melting point polyalkoxylate to plant protection active agent is at least 1:2; (ii) the proportion of liquid or low melting point polyalkoxylate, based on the total weight of the relatively high molecular weight sulfonates, is at least 30% by weight; and (iii) the weight ratio of liquid or low melting point polyalkoxylate to relatively high molecular weight sulfonate is at most 3:1. The invention also relates to processes for their preparation and the use of the plant protection compositions for the treatment of plants and their habitat as well as corresponding processes, and also spray mixtures comprising such a plant protection composition (see abstract). Solid plant protection compositions, in particular those based on dust-free solid granules, offer considerable advantages in comparison with liquid plant protection compositions, which affects use, storage, transportation, stability and waste disposal of packaging materials. However, the low melting point of the abovementioned alkoxylates, which leads to problems on incorporation in solid plant protection compositions, is frequently disadvantageous. Thus, conventional solid plant protection compositions can only include small amounts of liquid, oily or low melting point additives, such as those represented by the alkoxylates, since otherwise agglutination and aggregation of the granules occur. Typically, less than 15% by weight merely of such additives can be added without harming the storage stability (paragraph 12). An object of the present invention is accordingly a solid plant protection composition comprising a plant protection active agent which comprises:
a) liquid or low melting point polyalkoxylate; and b) a carrier based on relatively high molecular weight sulfonate, wherein (paragraph 24) (i) the weight ratio of liquid or low melting point polyalkoxylate to plant protection active agent is at least 1:2; (paragraph 25) (ii) the proportion of liquid or low melting point polyalkoxylate, based on the total weight of the relatively high molecular weight sulfonate, is at least 30% by weight; (paragraph 26) and (iii) the weight ratio of liquid or low melting point polyalkoxylate to relatively high molecular weight sulfonate is at most 3:1 (paragraph 27). An additional embodiment of relatively high molecular weight sulfonates provides copolymers CP synthesized from ethylenically unsaturated monomers M, the monomers M constituting the copolymer CP comprising ) at least one monoethylenically unsaturated monomer M1 exhibiting at least one sulfonic acid group, and (paragraph 139) ) at least one neutral monoethylenically unsaturated monomer M2. The copolymers CP are generally "random copolymers", i.e. the monomers M1 and M2 are randomly distributed along the polymer chain. In principle, alternating copolymers CP and block copolymers CP are also suitable. The monomers M constituting the copolymer CP comprise according to the invention at least one monoethylenically unsaturated monomer M1 exhibiting at least one sulfonic acid group. The proportion of the monomers M1 to the monomers M in this context generally amounts to from 1 to 90% by weight, frequently from 1 to 80% by weight, in particular from 2 to 70% by weight and especially from 5 to 60% by weight, based on the total amount of monomers M. In this context, all monoethylenically unsaturated monomers exhibiting at least one sulfonic acid group are suitable in principle as monomers M1. The monomers M1 can exist both in their acid form and in the salt form. The parts by weight given are based in this context on the acid form (paragraphs 141-144).
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Examples of monomers M1 of the general formula (V) are 2-acrylamido-2-methylpropanesulfonic acid, 2-methacrylamido-2-methylpropanesulfonic acid, 2-acrylamidoethanesulfonic acid, 2-methacrylamidoethanesulfonic acid, 2-acryloyloxyethanesulfonic acid, 2-methacryloyloxyethanesulfonic acid, 3-acryloyloxypropanesulfonic acid and 2-methacryloyloxypropanesulfonic acid (paragraph 151). In addition to the monomers M1, the monomers M constituting the copolymer CP comprise at least one neutral monoethylenically unsaturated monomer M2. "Neutral" means that the monomers M2 possess no functional group which reacts as an acid or base under aqueous conditions or is present in ionic form. The total amount of the monomers M2 generally comes to from 10 to 99% by weight, frequently from 20 to 99% by weight, in particular from 30 to 98% by weight and especially from 40 to 95% by weight, based on the total weight of the monomers M (paragraph 152). Examples of monomers M2 are those with limited solubility in water, e.g. a solubility in water of less than 50 g/l and in particular of less than 30 g/l (at 20.degree. C. and 1013 mbar), and those with an elevated solubility in water, e.g. a solubility in water .gtoreq.50 g/l, in particular .gtoreq.80 g/l (at 20.degree. C. and 1013 mbar). Monomers with limited solubility in water are also described subsequently as monomers M2a. Monomers with elevated solubility in water are also described subsequently as monomers M2b (paragraph 153). The monomers M2a are preferably chosen from vinylaromatic monomers, esters of acrylic acid with C.sub.2-C.sub.10-alkanols, such as ethyl acrylate, n-butyl acrylate, 2-butyl acrylate, isobutyl acrylate, tert-butyl acrylate or 2-ethylhexyl acrylate, esters of acrylic acid with C.sub.4-C.sub.10-cycloalkanols, such as cyclohexyl acrylate, esters of acrylic acid with phenyl-C.sub.1-C.sub.4-alkanols, such as benzyl acrylate, 2-phenylethyl acrylate and 1-phenyl-ethyl acrylate, esters of acrylic acid with phenoxy-C.sub.1-C.sub.4-alkanols, such as 2-phenoxyethyl acrylate, esters of methacrylic acid with C.sub.1-C.sub.10-alkanols, in particular with C.sub.1-C.sub.6-alkanols, such as methyl methacrylate, ethyl methacrylate, n-butyl methacrylate, 2-butyl methacrylate, isobutyl methacrylate, tert-butyl methacrylate or 2-ethylhexyl methacrylate, esters of methacrylic acid with C.sub.4-C.sub.10-cycloalkanols, such as cyclohexyl methacrylate, esters of methacrylic acid with phenyl-C.sub.1-C.sub.4-alkanols, such as benzyl methacrylate, 2-phenylethyl methacrylate and 1-phenylethyl methacrylate, and esters of methacrylic acid with phenoxy-C.sub.1-C.sub.4-alkanols, such as 2-phenoxyethyl methacrylate. In a particularly preferred embodiment, the monomers M2a comprise up to at least 80%, based on the total amount of the monomers M2a, of and in particular exclusively esters of acrylic acid and/or of methacrylic acid with C.sub.1-C.sub.6-alkanols (paragraph 155). Preferably, the monomers M2 comprise at least one of the abovementioned monomers M2a exhibiting, at 20.degree. C. in water, a solubility of less than 50 g/l and in particular of less than 30 g/l. The proportion of the monomers M2a in the monomers M constituting the copolymer CP typically ranges from 10 to 99% by weight, frequently ranges from 20 to 99% by weight, in particular ranges from 30 to 98% by weight and especially ranges from 40 to 95% by weight, based on the total weight of the monomers M (paragraph 157). In a first preferred embodiment of the invention, the monomer M2a is sole or virtually sole monomer M2 and amounts to at least 95% by weight and in particular at least 99% by weight of the monomers M2 9paragraph 158). In a second preferred embodiment of the invention, the monomers M2 comprise, in addition to the monomer M2a, at least one monomer M2b exhibiting, at 20.degree. C. in water, a solubility of at least 50 g/l and in particular of at least 80 g/l. Correspondingly, the monomers M constituting the copolymer CP comprise, in addition to the monomer M1, both at least one of the abovementioned monomers M2a, in particular at least one of the monomers M2a mentioned as preferred, and at least one of the abovementioned monomers M2b, in particular at least one of the monomers M2b mentioned as preferred (paragraph 159). The total amount of the monomers M1+M2b will frequently not exceed 90% by weight, in particular 80% by weight and especially 70% by weight, based on the total amount of the monomers M, and ranges in particular from 10 to 90% by weight, in particular from 20 to 80% by weight and especially from 30 to 70% by weight, based on the total amount of the monomers M. Correspondingly, the monomers M2a frequently come to at least 10% by weight, in particular at least 20% by weight and especially at least 30% by weight, e.g. from 10 to 90% by weight, in particular from 20 to 80% by weight and especially from 30 to 70% by weight, based on the total amount of the monomers M (paragraph 160). In this second particularly preferred embodiment, the monomers M1 preferably come to from 1 to 80% by weight, in particular from 2 to 70% by weight and particularly preferably from 5 to 60% by weight, the monomers M2a preferably come to from 10 to 90% by weight, in particular from 20 to 80% by weight and particularly preferably from 30 to 70% by weight, and the monomers M2b preferably come to from 5 to 89% by weight, in particular from 10 to 78% by weight and particularly preferably from 20 to 65% by weight, based on the total amount of the monomers M. Particular preference is given among these to copolymers CP, the constituent monomers M of which comprise, as monomers M1, at least one monomer of the formula (V), as monomers M2a, at least one monomer chosen from esters of acrylic acid with C.sub.2-C.sub.10-alkanols and esters of methacrylic acid with C.sub.1-C.sub.10-alkanols and, as monomers M2b, at least one monomer chosen from hydroxy-C.sub.2-C.sub.4-alkyl esters of acrylic acid and of methacrylic acid (paragraph 161). In this context, it is particularly preferable for the plant protection composition to comprise at least 15% by weight, preferably at least 25% by weight and in particular at least 30% by weight of relatively high molecular weight sulfonate (paragraph 180). The following are suitable in particular as component (c): c1) surface-active auxiliaries; c2) suspension agents, antifoaming agents, retention agents, pH buffers, drift retardants and other auxiliaries for improving the handleability and/or physical properties of the composition; and c3) chelating agents (paragraph 200-203). The pesticide for use according to the invention is chosen in particular from fungicides (e1), herbicides (e2) and insecticides (e3) (paragraph 0256). Fungicides comprise, for example folpet or thiochlorfenphim etc. (paragraph 257). According to a particular embodiment of the invention, fungicides (e1) comprise: sulfonates, such as captafol, captan, dichlofluanid, folpet or tolylfluanid (paragraph 272). The proportion of the active agent component (e) in the total weight of the composition generally comes to more than 1% by weight, preferably more than 2% by weight and in particular more than 2.5% by weight. On the other hand, the proportion of the component (e) in the total weight of the composition generally comes to less than 50% by weight, preferably less than 40% by weight and in particular less than 35% by weight, based on the total weight of the composition (paragraph 337). In a particular embodiment of the invention, the composition is a particulate solid, in particular a granule or powder. In this context, it is particularly preferable for the granule to be coarse-grained (paragraphs 340-341). The copolymers CP according to the invention are in some cases known from PCT/EP04/011797 or can be prepared according to conventional methods by radical polymerization of the monomers M. The polymerization can be carried out by free radical polymerization or by controlled radical polymerization processes. The polymerization using one or more initiators and can be carried out as solution polymerization, as emulsion polymerization, as suspension polymerization, as precipitation polymerization or as bulk polymerization. The polymerization can be carried out batchwise, semicontinuously or continuously (paragraph 169).
The examiner brings applicant’s attention to the whole concept of picking and choosing of the elected block copolymer monomers and the agricultural active agent and its amount from the broader teachings of Kober et al. The specific combination of features claimed are disclosed within the broad generic ranges taught by the reference but such “picking and choosing” within several variables does not necessarily give rise to anticipation. Corning Glass Works v. Sumitomo Elec., 868 F.2d 1251, 1262 (Fed. Circ. 1989). If applicants resort to argue the reference does not provide any motivation to select this specific combination of ingredients and their amounts, it must be remembered that “[w]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” KSR v. Teleflex, 127 S.Ct. 1727, 1740 (2007) (quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976)). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious,” the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR at 1741. The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton.” Id. at 1742. Consistent with this reasoning, it would have been obvious to have selected various combinations of various disclosed ingredients and their workable amounts and ratios from within a prior art disclosures, to arrive compositions “yielding no more than one would expect from such an arrangement.” In the case where the claimed range of amounts of monomers, block copolymer, and agricultural active "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Similarly, a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985). Furthermore, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. "[W]here the general conditions of a claim are teach 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, 105 USPQ 233,235 (CCPA 1955). An ordinary skilled artisan would have had a reasonable chance or expectation of success in producing the instant invention by following the teachings of Kober et al. because Kober et al. teach all of the claimed elements of the instant invention as described above.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments
Applicant's arguments filed June 02 and 18, 2025 have been fully considered but they are not persuasive.
Applicant argues First, the Examiner has made selections from multiple lists without a rationale for each selection, and without a rationale for the combination of the selections. Second, there cannot be predictability of function of components as claimed from a different “known function” taught in the prior art. The “known function” of the components in Kober is to provide high proportions of liquid of low melting point additives in solid formulations. (See Kober, [0022]). Kober does this by providing compositions with large amounts of high molecular weight sulfonate and low melting point polyalkoxylates. (See Kober, [0023]). In th present case, the function of the components is different functionally than that in Kober. Moreover, the components had not been taught to perform the role they perform in the present invention. Thus, there is no simple rearranging old elements to perform the same function they had been known to perform.
The above assertions are not found persuasive the inclusion of other agents is not excluded by Applicant’s claim. Applicant uses the transitional phrase “comprising”. The transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. See, e.g., Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004). Kober clearly teach in its disclosure Applicant’s elected block copolymer. Indeed it would have been prima facie obvious to a person of ordinary skill in the art at the time of the instant invention was filed to produce the instant invention by following the teachings of Kober et al. because Kober et al. teach all of the elements of the claimed invention in its generic teachings. Kober et al. teach a solid plant protection compositions comprising: a) liquid or low melting point polyalkoxylate; and b) a carrier based on relatively high molecular weight sulfonate, wherein (i) the weight ratio of liquid or low melting point polyalkoxylate to plant protection active agent is at least 1:2; (ii) the proportion of liquid or low melting point polyalkoxylate, based on the total weight of the relatively high molecular weight sulfonates, is at least 30% by weight; and (iii) the weight ratio of liquid or low melting point polyalkoxylate to relatively high molecular weight sulfonate is at most 3:1. The invention also relates to processes for their preparation and the use of the plant protection compositions for the treatment of plants and their habitat as well as corresponding processes, and also spray mixtures comprising such a plant protection composition (see abstract). Solid plant protection compositions, in particular those based on dust-free solid granules, offer considerable advantages in comparison with liquid plant protection compositions, which affects use, storage, transportation, stability and waste disposal of packaging materials. However, the low melting point of the abovementioned alkoxylates, which leads to problems on incorporation in solid plant protection compositions, is frequently disadvantageous. Thus, conventional solid plant protection compositions can only include small amounts of liquid, oily or low melting point additives, such as those represented by the alkoxylates, since otherwise agglutination and aggregation of the granules occur. Typically, less than 15% by weight merely of such additives can be added without harming the storage stability (paragraph 12). An object of the present invention is accordingly a solid plant protection composition comprising a plant protection active agent which comprises:
a) liquid or low melting point polyalkoxylate; and b) a carrier based on relatively high molecular weight sulfonate, wherein (paragraph 24) (i) the weight ratio of liquid or low melting point polyalkoxylate to plant protection active agent is at least 1:2; (paragraph 25) (ii) the proportion of liquid or low melting point polyalkoxylate, based on the total weight of the relatively high molecular weight sulfonate, is at least 30% by weight; (paragraph 26) and (iii) the weight ratio of liquid or low melting point polyalkoxylate to relatively high molecular weight sulfonate is at most 3:1 (paragraph 27). An additional embodiment of relatively high molecular weight sulfonates provides copolymers CP synthesized from ethylenically unsaturated monomers M, the monomers M constituting the copolymer CP comprising ) at least one monoethylenically unsaturated monomer M1 exhibiting at least one sulfonic acid group, and (paragraph 139) ) at least one neutral monoethylenically unsaturated monomer M2. The copolymers CP are generally "random copolymers", i.e. the monomers M1 and M2 are randomly distributed along the polymer chain. In principle, alternating copolymers CP and block copolymers CP are also suitable. The monomers M constituting the copolymer CP comprise according to the invention at least one monoethylenically unsaturated monomer M1 exhibiting at least one sulfonic acid group. The proportion of the monomers M1 to the monomers M in this context generally amounts to from 1 to 90% by weight, frequently from 1 to 80% by weight, in particular from 2 to 70% by weight and especially from 5 to 60% by weight, based on the total amount of monomers M. In this context, all monoethylenically unsaturated monomers exhibiting at least one sulfonic acid group are suitable in principle as monomers M1. The monomers M1 can exist both in their acid form and in the salt form. The parts by weight given are based in this context on the acid form (paragraphs 141-144).
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Examples of monomers M1 of the general formula (V) are 2-acrylamido-2-methylpropanesulfonic acid, 2-methacrylamido-2-methylpropanesulfonic acid, 2-acrylamidoethanesulfonic acid, 2-methacrylamidoethanesulfonic acid, 2-acryloyloxyethanesulfonic acid, 2-methacryloyloxyethanesulfonic acid, 3-acryloyloxypropanesulfonic acid and 2-methacryloyloxypropanesulfonic acid (paragraph 151). In addition to the monomers M1, the monomers M constituting the copolymer CP comprise at least one neutral monoethylenically unsaturated monomer M2. "Neutral" means that the monomers M2 possess no functional group which reacts as an acid or base under aqueous conditions or is present in ionic form. The total amount of the monomers M2 generally comes to from 10 to 99% by weight, frequently from 20 to 99% by weight, in particular from 30 to 98% by weight and especially from 40 to 95% by weight, based on the total weight of the monomers M (paragraph 152). Examples of monomers M2 are those with limited solubility in water, e.g. a solubility in water of less than 50 g/l and in particular of less than 30 g/l (at 20.degree. C. and 1013 mbar), and those with an elevated solubility in water, e.g. a solubility in water .gtoreq.50 g/l, in particular .gtoreq.80 g/l (at 20.degree. C. and 1013 mbar). Monomers with limited solubility in water are also described subsequently as monomers M2a. Monomers with elevated solubility in water are also described subsequently as monomers M2b (paragraph 153). The monomers M2a are preferably chosen from vinylaromatic monomers, esters of acrylic acid with C.sub.2-C.sub.10-alkanols, such as ethyl acrylate, n-butyl acrylate, 2-butyl acrylate, isobutyl acrylate, tert-butyl acrylate or 2-ethylhexyl acrylate, esters of acrylic acid with C.sub.4-C.sub.10-cycloalkanols, such as cyclohexyl acrylate, esters of acrylic acid with phenyl-C.sub.1-C.sub.4-alkanols, such as benzyl acrylate, 2-phenylethyl acrylate and 1-phenyl-ethyl acrylate, esters of acrylic acid with phenoxy-C.sub.1-C.sub.4-alkanols, such as 2-phenoxyethyl acrylate, esters of methacrylic acid with C.sub.1-C.sub.10-alkanols, in particular with C.sub.1-C.sub.6-alkanols, such as methyl methacrylate, ethyl methacrylate, n-butyl methacrylate, 2-butyl methacrylate, isobutyl methacrylate, tert-butyl methacrylate or 2-ethylhexyl methacrylate, esters of methacrylic acid with C.sub.4-C.sub.10-cycloalkanols, such as cyclohexyl methacrylate, esters of methacrylic acid with phenyl-C.sub.1-C.sub.4-alkanols, such as benzyl methacrylate, 2-phenylethyl methacrylate and 1-phenylethyl methacrylate, and esters of methacrylic acid with phenoxy-C.sub.1-C.sub.4-alkanols, such as 2-phenoxyethyl methacrylate. In a particularly preferred embodiment, the monomers M2a comprise up to at least 80%, based on the total amount of the monomers M2a, of and in particular exclusively esters of acrylic acid and/or of methacrylic acid with C.sub.1-C.sub.6-alkanols (paragraph 155). Preferably, the monomers M2 comprise at least one of the abovementioned monomers M2a exhibiting, at 20.degree. C. in water, a solubility of less than 50 g/l and in particular of less than 30 g/l. The proportion of the monomers M2a in the monomers M constituting the copolymer CP typically ranges from 10 to 99% by weight, frequently ranges from 20 to 99% by weight, in particular ranges from 30 to 98% by weight and especially ranges from 40 to 95% by weight, based on the total weight of the monomers M (paragraph 157). In a first preferred embodiment of the invention, the monomer M2a is sole or virtually sole monomer M2 and amounts to at least 95% by weight and in particular at least 99% by weight of the monomers M2 9paragraph 158). In a second preferred embodiment of the invention, the monomers M2 comprise, in addition to the monomer M2a, at least one monomer M2b exhibiting, at 20.degree. C. in water, a solubility of at least 50 g/l and in particular of at least 80 g/l. Correspondingly, the monomers M constituting the copolymer CP comprise, in addition to the monomer M1, both at least one of the abovementioned monomers M2a, in particular at least one of the monomers M2a mentioned as preferred, and at least one of the abovementioned monomers M2b, in particular at least one of the monomers M2b mentioned as preferred (paragraph 159). The total amount of the monomers M1+M2b will frequently not exceed 90% by weight, in particular 80% by weight and especially 70% by weight, based on the total amount of the monomers M, and ranges in particular from 10 to 90% by weight, in particular from 20 to 80% by weight and especially from 30 to 70% by weight, based on the total amount of the monomers M. Correspondingly, the monomers M2a frequently come to at least 10% by weight, in particular at least 20% by weight and especially at least 30% by weight, e.g. from 10 to 90% by weight, in particular from 20 to 80% by weight and especially from 30 to 70% by weight, based on the total amount of the monomers M (paragraph 160). In this second particularly preferred embodiment, the monomers M1 preferably come to from 1 to 80% by weight, in particular from 2 to 70% by weight and particularly preferably from 5 to 60% by weight, the monomers M2a preferably come to from 10 to 90% by weight, in particular from 20 to 80% by weight and particularly preferably from 30 to 70% by weight, and the monomers M2b preferably come to from 5 to 89% by weight, in particular from 10 to 78% by weight and particularly preferably from 20 to 65% by weight, based on the total amount of the monomers M. Particular preference is given among these to copolymers CP, the constituent monomers M of which comprise, as monomers M1, at least one monomer of the formula (V), as monomers M2a, at least one monomer chosen from esters of acrylic acid with C.sub.2-C.sub.10-alkanols and esters of methacrylic acid with C.sub.1-C.sub.10-alkanols and, as monomers M2b, at least one monomer chosen from hydroxy-C.sub.2-C.sub.4-alkyl esters of acrylic acid and of methacrylic acid (paragraph 161). In this context, it is particularly preferable for the plant protection composition to comprise at least 15% by weight, preferably at least 25% by weight and in particular at least 30% by weight of relatively high molecular weight sulfonate (paragraph 180). The following are suitable in particular as component (c): c1) surface-active auxiliaries; c2) suspension agents, antifoaming agents, retention agents, pH buffers, drift retardants and other auxiliaries for improving the handleability and/or physical properties of the composition; and c3) chelating agents (paragraph 200-203). The pesticide for use according to the invention is chosen in particular from fungicides (e1), herbicides (e2) and insecticides (e3) (paragraph 0256). Fungicides comprise, for example folpet or thiochlorfenphim etc. (paragraph 257). According to a particular embodiment of the invention, fungicides (e1) comprise: sulfonates, such as captafol, captan, dichlofluanid, folpet or tolylfluanid (paragraph 272). The proportion of the active agent component (e) in the total weight of the composition generally comes to more than 1% by weight, preferably more than 2% by weight and in particular more than 2.5% by weight. On the other hand, the proportion of the component (e) in the total weight of the composition generally comes to less than 50% by weight, preferably less than 40% by weight and in particular less than 35% by weight, based on the total weight of the composition (paragraph 337). In a particular embodiment of the invention, the composition is a particulate solid, in particular a granule or powder. In this context, it is particularly preferable for the granule to be coarse-grained (paragraphs 340-341). The copolymers CP according to the invention are in some cases known from PCT/EP04/011797 or can be prepared according to conventional methods by radical polymerization of the monomers M. The polymerization can be carried out by free radical polymerization or by controlled radical polymerization processes. The polymerization using one or more initiators and can be carried out as solution polymerization, as emulsion polymerization, as suspension polymerization, as precipitation polymerization or as bulk polymerization. The polymerization can be carried out batchwise, semicontinuously or continuously (paragraph 169).
Applicant argues the Office Action also picks and chooses from multiple laundry lists of components in Kober to arrive at a hindsight reconstruction of the claimed subject matter. While the Office Action asserts it is acceptable to pick and choose “[w]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious,” (emphasis added), that is quite unlike the present situation. First, the Examiner has made selections from multiple lists without a rationale for each selection, and without a rationale for the combination of the selections. Second, there cannot be predictability of function of components as claimed from a different “known function” taught in the prior art. The “known function” of the components in Kober is to provide high proportions of liquid of low melting point additives in solid formulations. (See Kober, [0022]). Kober does this by providing compositions with large amounts of high molecular weight sulfonate and low melting point polyalkoxylates See Kober, [0023]). In the present case, the function of the components is different