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 .
Applicant’s arguments, filed 12/15/2025, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
The examiner notes that Applicants’ arguments with respect the previously recited reference Fanlei et al (CN 105454271 A) are moot at this time, as the reference is not relied upon in the following prior art rejection.
Claim Status
Claims 1-20 are pending.
Claims 11-13 are withdrawn.
Specification
Applicant is reminded of the proper content of an abstract of the disclosure.
A patent abstract is a concise statement of the technical disclosure of the patent and should include that which is new in the art to which the invention pertains. The abstract should not refer to purported merits or speculative applications of the invention and should not compare the invention with the prior art.
If the patent is of a basic nature, the entire technical disclosure may be new in the art, and the abstract should be directed to the entire disclosure. If the patent is in the nature of an improvement in an old apparatus, process, product, or composition, the abstract should include the technical disclosure of the improvement. The abstract should also mention by way of example any preferred modifications or alternatives.
Where applicable, the abstract should include the following: (1) if a machine or apparatus, its organization and operation; (2) if an article, its method of making; (3) if a chemical compound, its identity and use; (4) if a mixture, its ingredients; (5) if a process, the steps.
Extensive mechanical and design details of an apparatus should not be included in the abstract. The abstract should be in narrative form and generally limited to a single paragraph within the range of 50 to 150 words in length.
See MPEP § 608.01(b) for guidelines for the preparation of patent abstracts.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because the abstract is less than 50 words in length and does not identify the ingredients of the microemulsion. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Objections
Claims 16, 18, and 19, are objected to because of the following informalities: Claims 16, 18, and 19, recite “as in the entire block of the copolymer molecule,” which is inconsistent with the terminology used in the preceding claims. For purposes of claim language consistency, the limitations should read “as part of the entire block copolymer molecule,” as recited in claim 3, for example. Appropriate correction is required.
Claim 20 is objected to because of the following informalities: “a alkylbenzene sulfonate” should read “an alkylbenzene sulfonate.” Appropriate correction is required.
Claim Rejections - 35 USC § 112(a) - New Matter
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.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
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 of carrying out his invention.
Claims 14-20 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 claim(s) contains 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.
Claim 14 recites a trinexapac-ethyl concentration of “about 200 to 300 gram/liter.” While appearing to have support for 200 to 300 grams/liter, there does not appear to be support for “about” 200 to 300 grams/liter. Accordingly, the limitation appears to be new matter.
Claim 14 also recites wherein the “weight of the poly(propylene oxide) block… is in the range of about 1750 to 2750 gram/mol.” While appearing to have support for 1750 to 2750 grams/mol, there does not appear to be support for “about” 1750 to 2750 grams/mol. Accordingly, the limitation appears to be new matter.
Claim 15 recites “about 250 gram/liter,” and while appearing to have support for 250 grams/liter of trinexapac-ethyl, there does not appear to be support for “about” 250 grams/liter. Accordingly, the limitation appears to be new matter.
Claim 16 recites “wherein the weight percentage of the poly(propylene oxide) block… is about 40%”. While appearing to have support for 40%, there does not appear to be support for “about” 40%. Accordingly, the limitation appears to be new matter.
Claim 17 recites “wherein the average molecular weight of the poly(propylene oxide) block… is about 1750 gram/mol, about 2250 gram/mol, or about 2750 gram/mol.” While appearing to have support for 1750 grams/mol, 2250 grams/mol, and 2750 grams/mol, there does not appear to be support for the “about.” Accordingly, the limitation appears to be new matter.
Claim 18 recites “wherein the average molecular weight of the poly(propylene oxide) block… is about 2250 gram/mol” and “wherein the weight percentage of the poly(ethylene oxide) block… is about 40%.” While appearing to have support for 2250 grams/mol and 40%, there does not appear to be support for “about.” Accordingly, the limitations appear to be new matter.
Claim 19 recites, “wherein the average molecular weight of the poly(propylene oxide) block… is about 2750 gram/mol” and “wherein the weight percentage of the poly(ethylene oxide) block… is about 40%.” While appearing to have support for 2750 grams/mol and 40%, there does not appear to be support for “about.” Accordingly, the limitations appear to be new matter.
Claim Rejections - 35 USC § 112(b) or pre-AIA 2nd ¶
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 4 and 5, 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 4 recites the limitation "the emulsion composition" in 3. There is insufficient antecedent basis for this limitation in the claim. Claim 4 depends from claim 1, where a microemulsion composition is claimed, however, the is no recitation for an “emulsion composition” specifically. For purposes of examination, the claim will be interpreted as the microemulsion composition.
Claim 5 is rejected for the same reasons for depending upon rejected claim 4.
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.
Claims 1, 2, 4-9, 14-16, and 20, are rejected under 35 U.S.C. 103 as being unpatentable over Schlotterbeck et al (US 20110195839 A1, hereinafter “Schlotterbeck”).
Schlotterbeck teaches stable microemulsion compositions comprising at least one plant protectant with a water solubility of less than 5 g/l at 20 deg C, at least one nonionic surfactant, etc. (abs, ¶ 17). The plant protectants include growth regulators, such as trinexapac ethyl, etc. (¶¶ 148, 248). The nonionic surfactants include propylene oxide/ethylene oxide block cooligomers, including PLURONIC PE, in particular PLURONIC PE 6200 and 6400 (¶ 108). As evidenced by the instant specification, PLURONIC PE 6200 (20% PEO, 1750 g/mol PPO) and 6400 (40% PEO, 1750 g/mol PPO) are a suitable poly(ethylene oxide)-poly(propylene oxide)-poly(ethylene oxide) block copolymers (see the table on pp. 4-7 of the instant specification). The nonionic surfactants are from 0.5 to 30 wt% of the compositions (¶¶ 145, 260, claim 36). Embodiments comprise 7.2 g PLURONIC PE 6400, out of a total formulation weight of 100 g (table 2, no. 12). Additional nonionic surfactants include castor oil ethoxylates (¶ 92). The microemulsion compositions further comprise solvents with a water solubility of over 100 g/l at 20 deg C, at least one organic solvent with a water solubility from 2-100 g/l at 20 deg C, etc. (abs). The concentration of active agent is from 0.1-40 wt% (¶ 260). The concentration of the solvents are 1-60 wt% of solvent b), 1-60 wt% of solvent c), and 1-60 wt% of solvent d) (¶ 260).
Regarding claim 1, it would have been obvious to formulate a trinexapac-ethyl composition in the form of a microemulsion, as taught by the reference.
It would have been obvious to include PLURONIC PE6200 (20% PEO, 1750 g/mol PPO) or PLURONIC PE 6400 (40% PEO, 1750 g/mol PPO) in the microemulsion made obvious above, which were known nonionic surfactants suitable for microemulsions comprising trinexapac-ethyl, as taught by the reference.
Regarding claim 2, it would have been obvious to select from PLURONIC PE 6400 (40% PEO, 1750 g/mol PPO), for the same reasons discussed above, thereby meeting the claimed limitations.
Regarding claim 4, where the microemulsions are aqueous based, and the working embodiment of no. 12 comprises 7.2 g/100 g total formulation weight, and based on the density of the aqueous microemulsion formulation which would be expected to be about 1000 g/l, it appears that the amount of PLURONIC PE 6400 is about 72 g/l, falling within the claimed range. Accordingly, when formulating the microemulsion made obvious above comprising trinexapac ethyl, it would have been obvious for the skilled artisan to start with those amounts form the working examples, and adjust from there in order to achieve optimal stability, properties, etc. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. 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 claim 5, where about 72 g/l of the block copolymer is calculated and made obvious above, and Schlotterbeck teaches the amount of nonionic surfactant can vary from 0.5 to 30 wt% (i.e., 0.5-30 g/100 g composition, or 50-300 g/l), it would have been obvious for the skilled artisan to adjust the amount of the block copolymer within that range, thereby overlapping the concentration range of claim 5. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Further, it would have been obvious for the skilled artisan to routinely adjust the amount of the block copolymer in order to achieve optimal stability of the trinexapac ethyl microemulsion compositions made obvious above. See MPEP 2144.05(II)(A).
Regarding claims 6 and 7, when formulating the microemulsion composition comprising trinexapac ethyl and a block copolymer as instantly claimed, where Schlotterbeck teaches the amount active agent can vary from 0.1 to 40 wt% (0.1 to 40 wt% of active in 100 g of total composition weight, results in about 10-400 g/l of active), it would have been obvious for the skilled artisan to include trinexapac ethyl within the ranges suitable for active agents, as taught by the reference. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Further, it would have been well within the relative skills of the skilled artisan to routinely adjust the amount of trinexapac ethyl in order to determine the optimal concentrations to achieve desired microemulsion composition activity for desired uses. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. 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 claim 8, it would have been obvious to further include castor oil ethoxylates (i.e., a castor oil alkoxylate), a suitable nonionic surfactant taught by Schlotterbeck, and where the reference teaches multiple nonionic surfactants may be included.
Regarding claim 9, where water miscible solvents are made obvious above, and the amount of each solvent ranges from 1-60 wt% of the total microemulsion weight, it would have been obvious for the skilled artisan to adjust within that range. For example, if 100 g of total formulation weight, such as in working embodiment no. 12, the concentration of each solvent can range from 1-60 g, or 10-600 g/l, calculated based on the density of the aqueous microemulsion formulation which would be expected to be about 1000 g/l.
Further, it would have been obvious for the skilled artisan to routinely adjust the amount of the water miscible solvent in order to achieve optimal properties for the trinexapac ethyl microemulsion compositions made obvious above. See MPEP 2144.05(II)(A).
Regarding claim 14, it would have been obvious to formulate a microemulsion composition comprising trinexapac ethyl in concentrations overlapping those instantly claimed, for the same reasons discussed above by Schlotterbeck. Further, it would have been well within the relative skills of the skilled artisan to routinely adjust the amount of trinexapac ethyl in order to determine the optimal concentrations to achieve desired microemulsion composition activity for desired uses. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. 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).
It would have been obvious to select from PLURONIC PE 6400 (40% PEO, 1750 g/mol PPO) as the nonionic surfactant, for the same reasons discussed above by Schlotterbeck.
Regarding claim 15, it would have been obvious to formulate a microemulsion composition comprising trinexapac ethyl in concentrations overlapping those instantly a claimed, for the same reasons discussed above by Schlotterbeck. Further, it would have been well within the relative skills of the skilled artisan to routinely adjust the amount of trinexapac ethyl, for the same reasons discussed above. See MPEP 2144.05(II)(A).
Regarding claim 16, where the selection of PLURONIC PE 6400 (40% PEO, 1750 g/mol PPO) is made obvious above, the limitations are met.
Regarding claim 20, it would have been obvious to further include a castor oil ethoxylate (i.e., a castor oil alkoxylate), for the same reasons discussed above by Schlotterbeck.
Claims 3 and 17-19, are rejected under 35 U.S.C. 103 as being unpatentable over Schlotterbeck et al (US 20110195839 A1, hereinafter “Schlotterbeck”), as applied to claims 1, 2, 4-9, 14-16, and 20 above, and further in view of Kober et al (US 20060100105 A1) and Wyandotte Chemicals (Chem Engin News Archive, 1961, vol 29, issue 50, pp. 1-4).
Schlotterbeck is discussed above but does not specifically teach a block copolymer with the molecular weights of claims 3 and 17-19.
Kober et al teach bioregulatory compositions used in plant cultivation, wherein the active agent may be trinexapac-ethyl (abs, ¶ 88). The compositions may be in the form of microemulsions (¶ 93). It was known to include PLURONIC polymers as surfactants of the type ABA with the formula R16O—(C2H4O)p—(C3H6O)q—(C2H4O)r—R17, wherein p, q, r independently of one another correspond to a value in the range of from 2 to 300, preferably from 5 to 200 and in particular from 10 to 150, and R16 and R17 independently of one another are hydrogen or C1-C4-alkyl, C1-C4-alkyl-CO, in particular methyl, t-butyl and acetyl, and further groups which are suitable for end capping (¶ 115).
Kober et al do not specifically teach an embodiment disclosing the molecular weight of the PEO block and the wt% of the PEO block as instantly claimed.
Wyandotte Chemicals teaches known PLURONIC polyols that are useful for agrochemical products as emulsifiers, emulsion stabilizers, and wetting agents, such as L84 (40% PEO, 2250 g/mol PPO), P85 (50% PEO, 2250 g/mol PPO), P94 (40% PEO, 2750 g/mol PPO), etc., where the particular PLURONIC polyols are selected based on their desired properties, such as good emulsifying properties, low foam, good wetting, soluble in cold water, etc. (Pluronic Grid, Example I).
Regarding claims 3, 17, and 19, where Schlotterbeck teaches propylene oxide/ethylene oxide block copolymers are suitable, including PLUROINC PE polymers, and Kober et al teach ABA PLURONIC polymers are suitable for microemulsions comprising trinexapac-ethyl, it would have been obvious to modify the microemulsion composition made obvious above by using other known PLURONIC polymers known to be suitable for agrochemical compositions, such as for example PLURONIC P94 (40% PEO, 2750 g/mol PPO), as taught by Wyandotte Chemicals, falling within the range of suitable PLURONIC polymers known for microemulsion compositions comprising trimaximal-ethyl, as taught by Kober et al. Further, it would have been well within the relative skills of the skilled artisan to determine the desired properties of the PLURONIC polymers in order to optimize the stability, wettability, solubility, etc., of the microemulsion composition made obvious above, by using the PLURONIC grid of Wyandotte Chemicals, which provides predictable properties of the PLURONIC polymers. See MPEP 2144(II)(A).
Regarding claim 18, it would have been obvious to modify the microemulsion composition made obvious above by using other known PLURONIC polymers known to be suitable for agrochemical compositions, such as for example PLURONIC L84 (40% PEO, 2250 g/mol PPO), as taught by Wyandotte Chemicals, for the same reasons discussed above. Further, it would have been well within the relative skills of the skilled artisan to determine the desired properties of the PLURONIC polymers in order to optimize the stability, wettability, solubility, etc., of the microemulsion composition made obvious above, by using the PLURONIC grid of Wyandotte Chemicals, which provides predictable properties of the PLURONIC polymers. See MPEP 2144(II)(A).
Claims 4-7, and 9, are rejected under 35 U.S.C. 103 as being unpatentable over Schlotterbeck et al (US 20110195839 A1, hereinafter “Schlotterbeck”), as applied to claims 1, 2, 4-9, 14-16, and 20 above, and further in view of Vogt et al (US 6071857).
Schlotterbeck is discussed above, and while appearing to teach concentrations of trinexapac ethyl, block copolymer, and solvent, falling within the instantly claimed concentration ranges, purely arguendo, if not, the following applies.
Vogt et al teach pesticidal compositions comprising a pesticide, such as trinexapac-ethyl and a block copolymer, wherein the compositions may be microemulsions (abs, col 3 ln 60, col 4 ln 2, examples 15 and 16, claims 23 and 31). The compositions have a total concentration of 1000 g/L (col 4 ln 5-6).
It would have been obvious to formulate the microemulsion composition made obvious by Schlotterbeck above, with a total concentration of 1000 g/L, which is known to be suitable for microemulsion compositions comprising trinexapac-ethyl, as taught by Vogt et al.
Regarding claims 4 and 5, upon formulating the microemulsion with a total concentration of 1000 g/L, the concentration of the nonionic surfactant at 0.5-30 wt%, as suggested by Schlotterbeck, results in a concentration range from 5-300 g/L, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Further, it would have been obvious for the skilled artisan to routinely adjust the amount of the nonionic surfactant in order to achieve optimal stability of the trinexpac ethyl microemulsion compositions made obvious above. See MPEP 2144.05(II)(A).
Regarding claims 6 and 7, upon formulating the microemulsion with a total concentration of 1000 g/L, the concentration of active agent, including trinexapac ethyl at 0.1-40 wt%, results in a concentration ranging from 10-400 g/l, overlapping the claimed ranges. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Further, it would have been well within the relative skills of the skilled artisan to routinely adjust the amount of trinexapac ethyl in order to determine the optimal concentrations to achieve desired microemulsion composition activity for desired uses. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. 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 claim 9, upon formulating the microemulsion with a total concentration of 1000 g/L, the concentration of solvent, each being in the range of 1-60 wt%, as suggested by Schlotterbeck, results in a concentration range from 10-600 g/l, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Further, it would have been obvious for the skilled artisan to routinely adjust the amount of the water miscible solvent in order to achieve optimal properties for the trinexapac ethyl microemulsion compositions made obvious above. See MPEP 2144.05(II)(A).
Claims 9 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Schlotterbeck et al (US 20110195839 A1, hereinafter “Schlotterbeck”), as applied to claims 1, 2, 4-9, 14-16, and 20 above, and further in view of Windreich et al (WO 2015075646 A1).
Schlotterbeck is discussed above but do not specifically teach amyl alcohol. Further, purely arguendo, if somehow the concentration of solvent of Schlotterbeck does not fall within the claimed ranges of claim 9, the following also applies.
Windreich et al teach stable microemulsion formulations comprising trinexapac-ethyl, where it was known to include one or more solvents in a total amount of about 10 to about 80 wt% (abs, pg. 10 1st ¶, pg. 11 2nd ¶). Suitable solvents include water, amyl alcohol, etc. (pg. 11 1st ¶). Table 1 discloses a working embodiment, where a simple calculation reveals the total concentration of the formulation is 1840 g/L (table 1).
Regarding claim 9, it would have been obvious to modify the microemulsion composition made obvious above by Schlotterbeck by including solvents in known amounts taught to be suitable for microemulsion compositions comprising trinexapac-ethyl, such as from about 10 to about 80 wt%, as taught by Windreich et al. A simple calculation to convert wt% to g/L can be achieved by using the total concentration (1840 g/L) from the working embodiment of Windreich et al, where about 10 to about 80 wt% corresponds to about 184 to about 1472 g/L, overlapping the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claim 10, it would have been obvious to include known solvents suitable for microemulsion compositions comprising trinexapac-ethyl, such as an amyl alcohol, as taught by Windreich et al.
Response to Arguments
While the prior art rejection does not rely upon Fanlei et al (CN 105454271 A), as previously recited, for purposes of a complete response, the examiner will address the arguments regarding Applicants’ results that may to still apply to the new rejection.
Applicants assert that surprisingly, only specific types of emulsifiers are suitable to provide microemulsion compositions which are technically suitable for real-life applications, and asserts some of the tested emulsifiers proved to be immiscible with the microemulsion. Applicants assert, that of the GENAPOL series, only GENAPOL C-100 was miscible (formulation 24); however, GENAPOL C-100 exhibited sedimentation upon dilution with water. Additionally, Applicants assert the TETRONIC series proved unacceptable. Applicants assert the use of the claimed poly(ethylene oxide)-poly(propylene oxide)-poly(ethylene oxide) block copolymers provides an advantage compared to other emulsifiers.
Respectfully, this argument is not persuasive. While the examiner recognizes that some of the emulsifiers were not miscible, it is not clear to the examiner what properties the microemulsion compositions must possess to be “technically suitable for real-life applications.” The shaded formulations, which are recited to be within the scope of the claims, had varying microemulsion appearances, with formulation 2 being opaque, and formulations 10 and 18 being an opaque emulsion after 24 hours. Formulation 3, while not being shaded, appears to fall within the scope of the instant claims, and was opaque with trace beige sediment after 24 hours. Other embodiments that appear to be outside of the scope of the instant claims also had an opaque appearance (formulations 4 and 13). Formulation 13 was also said to be unacceptable even though it was an opaque emulsion after 24 hours, similar to that of the shaded formulations.
Further, the page 8 of the instant specification recites that of emulsifiers a) (20% PEO, 1750 gram/mol PPO), b) (40% PEO, 1750 gram/mol PPO), c) (40% PEO, 2250 gram/mol PPO), and d) (40% PEO, 2750 gram/mol PPO), only c) and d) exhibited an acceptable chemical stability profile, though all fall within the claimed ranges for the block copolymer. It is also unclear what effect the lack of antifoam for a) and b) had on the trinexapac ethyl loss, where a) and b) were tested without antifoam, and c) and d) were tested with antifoam.
From these results, it is not clear what the alleged advantage of the claimed copolymers is compared to other emulsifiers. Based upon the teachings of the prior art discussed above, it appears to be expected that copolymers falling within the ranges instantly claimed would be suitable for formulating a microemulsion comprising trinexapac ethyl, as taught by Schlotterbeck above and for the same reasons.
Purely arguendo, the examiner notes that even if unexpected or unpredictable results were shown, the tested emulsifiers were tested in combination with a very specific combination of components, having a single concentration of each. From this, it does not appear that the data could be reasonably extended to include any combination of components, in any amounts, and expect that the microemulsion properties, if one even forms, would be the same.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSHUA A ATKINSON whose telephone number is (571)270-0877. The examiner can normally be reached M-F: 9:00 AM - 5:00 PM + Flex.
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/JOSHUA A ATKINSON/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612