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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 5/6/2026 has been entered.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Petrea et al. (6,948,276) in view of Nishimura et al. (2014/0066405).
Regarding claims 1-3, 6-8 and 11-12: Petrea et al. teach a wetting agent formulation comprising the claimed tri-branched blocked copolymer with a glycerine (same as glycerol) base and three ethylene oxide/propylene oxide block copolymer branches attached thereto (Example 6), water, and a pesticide (column 8, lines 29-36).
Petrea et al. fail to specify a pesticide.
However, Nishimura et al. teach a liquid pesticide (insecticide) composition comprising neonicotinoid-based compound, a silicone-based surfactant, propylene carbonate and ethanol (protic solvent) [0031-0037].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add the liquid pesticide composition of Nishimura et al. to the composition of Perea et al. as the pesticide. The composition will be flowable liquid at room temperature as it is a liquid, sprayable pesticide composition.
Regarding claims 4-5: Petrea et al. fail to specify a pesticide.
However, Nishimura et al. teach a liquid pesticide (insecticide) composition comprising neonicotinoid-based compound, a silicone-based surfactant, propylene carbonate and propylene glycol (protic solvent) [0031-0037].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add the liquid pesticide composition of Nishimura et al. to the composition of Perea et al. as the pesticide. The composition will be flowable liquid at room temperature as it is a liquid, sprayable pesticide composition.
Regarding claims 9 and 10: Petrea et al. teach a EO:PO ratio of from 5:95 to 95:5 (column 6, lines 30-34).
The ratio provides overlapping ranges to claims 9 and 10.
The subject matter as a whole would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention, since it has been held that choosing the overlapping portion, of the range taught in the prior art and the range claimed by the applicant, has been held to be a prima facie case of obviousness, see In re Malagari, 182 USPQ 549, In re Geisler 43 USPQ2d 1365 (Fed. Cir. 1997); In re Woodruff, 16 USPQ2d 1934 (CCPA 1976) and MPEP 2144.05.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of copending Application No. 17/962584 in view of Nishimura et al. (2014/0066405).
The copending application claims the wetting agent block copolymer and an alcohol ethoxylate.
The copending application fails to claim the solvents.
However, Nishimura et al. teach adding a liquid pesticide (insecticide) composition comprising neonicotinoid-based compound, a silicone-based surfactant, propylene carbonate, and ethanol or propylene glycol [0031-0037] to a wetting agent that will be in a water based spraying composition.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add the liquid pesticide of Nishimura et al. and water to the wetting agent composition of the copending claims to produce a sprayable pesticide composition.
This is a provisional nonstatutory double patenting rejection.
Response to Arguments
Applicant's arguments filed 5/6/2026 have been fully considered but they are not persuasive.
The applicant has made the argument that Petrea et al. fail to teach a non-water protic solvent. This is not persuasive because a non-water protic solvent is part of the pesticide composition of Nishimura et al. that is incorporated into Petrea et al.
Incorporating Nishimura et al. in the copending claims also provides the non-water protic solvent.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN USELDING whose telephone number is (571)270-5463. The examiner can normally be reached on M-F 8am to 6:30pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joseph Del Sole can be reached on 571-272-1130. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOHN E USELDING/ Primary Examiner, Art Unit 1763
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