05DETAILED 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 .
Notice to Comply with the Sequence Rules
REQUIREMENTS FOR PATENT APPLICATIONS CONTAINING NUCLEOTIDE AND/OR AMINO ACID SEQUENCE DISCLOSURES
Items 1) and 2) provide general guidance related to requirements for sequence disclosures.
37 CFR 1.821(c) requires that patent applications which contain disclosures of nucleotide and/or amino acid sequences that fall within the definitions of 37 CFR 1.821(a) must contain a "Sequence Listing," as a separate part of the disclosure, which presents the nucleotide and/or amino acid sequences and associated information using the symbols and format in accordance with the requirements of 37 CFR 1.821 - 1.825. This "Sequence Listing" part of the disclosure may be submitted:
In accordance with 37 CFR 1.821(c)(1) via the USPTO patent electronic filing system (see Section I.1 of the Legal Framework for Patent Electronic System (https://www.uspto.gov/PatentLegalFramework), hereinafter "Legal Framework") as an ASCII text file, together with an incorporation-by-reference of the material in the ASCII text file in a separate paragraph of the specification as required by 37 CFR 1.823(b)(1) identifying:
the name of the ASCII text file;
ii) the date of creation; and
iii) the size of the ASCII text file in bytes;
In accordance with 37 CFR 1.821(c)(1) on read-only optical disc(s) as permitted by 37 CFR 1.52(e)(1)(ii), labeled according to 37 CFR 1.52(e)(5), with an incorporation-by-reference of the material in the ASCII text file according to 37 CFR 1.52(e)(8) and 37 CFR 1.823(b)(1) in a separate paragraph of the specification identifying:
the name of the ASCII text file;
the date of creation; and
the size of the ASCII text file in bytes;
In accordance with 37 CFR 1.821(c)(2) via the USPTO patent electronic filing system as a PDF file (not recommended); or
In accordance with 37 CFR 1.821(c)(3) on physical sheets of paper (not recommended).
When a “Sequence Listing” has been submitted as a PDF file as in 1(c) above (37 CFR 1.821(c)(2)) or on physical sheets of paper as in 1(d) above (37 CFR 1.821(c)(3)), 37 CFR 1.821(e)(1) requires a computer readable form (CRF) of the “Sequence Listing” in accordance with the requirements of 37 CFR 1.824.
If the "Sequence Listing" required by 37 CFR 1.821(c) is filed via the USPTO patent electronic filing system as a PDF, then 37 CFR 1.821(e)(1)(ii) or 1.821(e)(2)(ii) requires submission of a statement that the "Sequence Listing" content of the PDF copy and the CRF copy (the ASCII text file copy) are identical.
If the "Sequence Listing" required by 37 CFR 1.821(c) is filed on paper or read-only optical disc, then 37 CFR 1.821(e)(1)(ii) or 1.821(e)(2)(ii) requires submission of a statement that the "Sequence Listing" content of the paper or read-only optical disc copy and the CRF are identical.
Specific deficiencies and the required response to this Office Action are as follows:
Specific deficiency - This application fails to comply with the requirements of 37 CFR 1.821 - 1.825 because it does not contain a "Sequence Listing" as a separate part of the disclosure or a CRF of the “Sequence Listing.”.
The examiner notes that there are examples within table A in the specification where there are at least 4 specifically defined (wherein “Specifically defined” means any of the standard 20 proteinogenic amino acids) in the depsipeptide and as such these examples require sequence IDs, e.g. 1.006, (which contains L-Phe, L-Pro, L-Val, L-Leu which are 4 specifically defined amino acids), 1.012, etc.
Required response - Applicant must provide:
A "Sequence Listing" part of the disclosure; together with
An amendment specifically directing its entry into the application in accordance with 37 CFR 1.825(a)(2);
A statement that the "Sequence Listing" includes no new matter as required by 37 CFR 1.821(a)(4); and
A statement that indicates support for the amendment in the application, as filed, as required by 37 CFR 1.825(a)(3).
If the "Sequence Listing" part of the disclosure is submitted according to item 1) a) or b) above, Applicant must also provide:
A substitute specification in compliance with 37 CFR 1.52, 1.121(b)(3) and 1.125 inserting the required incorporation-by-reference paragraph, consisting of:
A copy of the previously-submitted specification, with deletions shown with strikethrough or brackets and insertions shown with underlining (marked-up version);
A copy of the amended specification without markings (clean version); and
A statement that the substitute specification contains no new matter.
If the "Sequence Listing" part of the disclosure is submitted according to item 1) c) or d) above, applicant must also provide:
A CRF in accordance with 37 CFR 1.821(e)(1) or 1.821(e)(2) as required by 1.825(a)(5); and
A statement according to item 2) a) or b) above.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-5, 8, and 15-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over WO2018/102345 (‘345, from IDS), and further in view of AU2018233513A1 (‘513).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Regarding claim 1, ‘345 teaches compositions comprising aureobasidin A, which is applicant’s I-A1, as an agricultural fungicide and wherein their compositions can further comprise additional anti-fungal/fungicidal active agents which are not limited in scope (see entire document; e.g. structure pg. 3; pg. 3, ln. 18-pg. 4, ln. 26; claim 4; paragraph bridging pgs. 3-4; abstract; claims; pg. 4, ln. 35-pg. 5, ln. 16; pg. 1, ln. 29-pg. 2, ln. 3). ‘345 teaches that aureobasidins A-R are antifungal cyclic depsipeptides produced by Aureobasidium pullulans (pg. 1, ln. 29-30).
Regarding claims 2 and 5 and 20, ‘345 teaches wherein their compositions can comprise from 0.1-95 wt% aureobasidin A (pg. 4, ln. 4-5; see entire document; e.g. structure pg. 3; pg. 3, ln. 18-pg. 4, ln. 26; claim 4; paragraph bridging pgs. 3-4; abstract; claims; pg. 4, ln. 35-pg. 5, ln. 16; pg. 1, ln. 29-pg. 2, ln. 3).
Regarding claims 3-4, ‘345 teaches fermentation broth of A. pullulans is a source of aureobasidin A, which does not need to be isolated from the fermentation broth for use. ‘345 further teaches that aureobasidins A to R are produced by A. pullulans. Thus, ‘345 teaches antifungal use of aureobasidin A with additional aureobasidins such as E and/or G (see entire document; pg. 4-5, paragraph which bridges; pg. 7, ln. 18-25; claims 13-14; pg. 5, ln. 1-3; structure pg. 3; pg. 3, ln. 18-pg. 4, ln. 26; claim 4; paragraph bridging pgs. 3-4; abstract; claims; pg. 4, ln. 35-pg. 5, ln. 16; pg. 1, ln. 29-pg. 2, ln. 3).
Regarding claim 8, ‘345 teaches wherein their composition further comprises an agriculturally acceptable carrier and/or formulation adjuvant, and optionally a surfactant (see entire document; e.g. pg. 3, ln. 10-17; pg. 4, ln. 6-12; structure pg. 3; pg. 3, ln. 18-pg. 4, ln. 26; claim 4; paragraph bridging pgs. 3-4; abstract; claims; pg. 4, ln. 35-pg. 5, ln. 16; pg. 1, ln. 29-pg. 2, ln. 3).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
Regarding claims 1-5, 8, and 15-20, ‘345 does not teach wherein the additional fungicidal active agent is the claimed/elected fludioxonil, or wherein component A) comprises the additional depsipeptide of formula I-A of 0.1 to 90% by weight or 0.1 to 80% by weight, or the ratios of applicant’s component A to component B of from 100:1 to 1:100, specifically 100:1 to 1:200, more specifically 50:1 to 1:100, and even more specifically 20:1 to 1:40 which are now instantly claimed.
However, these deficiencies in ‘345 are addressed by ‘513.
‘513 teaches combinations of the elected fludioxonil and a mixture of A. pullulans strains and wherein the combinations can exhibit synergy and wherein the fludioxonil is used in lower amounts, e.g. .0025 g/L to 5 g/L of the preparation, (See entire document; abstract; claims; pg. 3, ln. 33-pg. 4, ln. 15; pg. 5, ln. 18-28; pg. 6, ln. 15-pg. 7, ln. 29; pg. 9, ln. 1-19; pg. 15, concentrations of chemical fungicides; tables showing results of fludioxonil and A. pullulans strains (all examples/biological testing examples)).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have formed the claimed combination of aureobasidin A with fludioxonil with or without the additional depsipeptides, i.e. aureobasidin E and/or G, claimed and the claimed carrier/adjuvant, etc. as claimed because it was known to form fungicidal compositions comprising aureobasidin A as its fermentation product which comprise/comprises aureobasidins A-R and therefore contains aureobasidin E and/or G, and to mix the aureobasidins with additional fungicidal actives which are not limited and formulate them with carriers/adjuvants, etc. It would be obvious to use fludioxonil as the additional chemical fungicide with the aureobasidin composition of ‘345 because fludioxonil is known to be compatible with A. pullulans which are the strains which produce the claimed aureobasidins/Aureobasidin A and fermentation mixture comprising other aureobasidins A-R, and because fludioxonil is compatible with A. pullulans it would be compatible with the aureobasidin A, etc. of ‘345 and it is known, "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have optimized the concentration of component A of applicants composition to comprise the claimed amounts of depsipeptide of formula I-A1 and I-A as claimed (e.g. claims 5, and 19-20, etc.) because it was known in the art to optimize the amounts of effective fungicidal agents in order to form the most effective fungicidal combinations for use in controlling phytopathogenic fungi. 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. "[W]here 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious to optimize the amounts of component A to component B to read on the claimed weight ratio of 100:1 to 1:1000 (A to B), and the other claimed ratios now found in new claims 16-18, because for instance the easiest ratio of 1:1 which is encompassed by applicant’s claimed ratio ranges, because each agent was known in the art to exhibit fungicidal activity against phytopathogenic fungi and it was known to combine fludioxonil with A. pullulans strains to provide synergistic fungicidal activity and A. pullulans were the known source of the claimed aureobasidins as is taught by ‘345. Thus, it would be obvious to optimize the amounts/ratios of fludioxonil with the claimed component A/aureobasidins in order to form the most effective and/or synergistic fungicidal combinations because "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) and because the courts have determined that, “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. ‘[W]here 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.’" In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding claims 19-20, it would have been obvious to one of ordinary skill in the art to optimize the amount/concentration of component A in the composition to be the claimed 0.1% to 80% by weight of compound(s) of formula I-A, and/or the claimed 40% to 99.99 wt% of component A being compound(s) of formula I-A1 as claimed because as discussed above ‘345 teaches compositions comprising aureobasidin A, which is applicant’s I-A1, as an agricultural fungicide and wherein their compositions can further comprise additional anti-fungal/fungicidal active agents which are not limited in scope, and ‘345 teaches that aureobasidins A-R are antifungal cyclic depsipeptides produced by Aureobasidium pullulans. Additionally, ‘345 teaches wherein their compositions can comprise from 0.1-95 wt% aureobasidin A which is applicant’s formula I-A/I-a1. One of ordinary skill in the art would have been motivated to optimize the claimed the amounts of the claimed known antifungal depsipeptide/aureobasidin actives to read on the claimed amounts/concentrations claimed because it was known in the art to optimize the amounts of effective fungicidal agents in order to form the most effective fungicidal combinations for use in controlling phytopathogenic fungi. 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. "[W]here 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Claim 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over WO2018/102345 (‘345, from IDS), and further in view of AU2018233513A1 (‘513) as applied to claims 1-5, 8, 15-20 above and further in view of Cichewicz et al. (US2021/0317167).
Determination of the scope and content of the prior art
(MPEP 2141.01)
The combined references together teach the composition of claims 1-5, 8, and 15-20 as discussed above and incorporated herein.
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
The combined references do not teach wherein the composition further comprises a depsipeptide of applicant’s formula (I-B), specifically Persephacin A.
Cichewicz discloses cyclic depsipeptide-class compounds, which are referred to as persephacins (paragraph 18). Persephacin (1), also known as persephacin A, has good antifungal activity (paragraphs 20, 43) and it can be used in agricultural and horticultural compositions, either alone or with carriers, surfactants, and/or other fungicides in any ratio (paragraphs 117-118).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have formed the claimed composition by adding the persephacin A of Cichewicz to the composition of the combined references comprising aureobasidin A and fludioxonil as discussed above because it is known to combine multiple antifungal actives into a composition together in order to form more effective antifungal compositions for treating a broad spectrum of phytopathogenic fungi. Further, the courts have previously determined that "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Claim 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over WO2018/102345 (‘345, from IDS), and further in view of AU2018233513A1 (‘513) as applied to claims 1-5, 8, and 15-20 above and further in view of Benkovic et al. (US20160324160).
Determination of the scope and content of the prior art
(MPEP 2141.01)
The combined references together teach the composition of claims 1-5, 8, 15-20 as discussed above and incorporated herein.
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
The combined references do not teach wherein component (B) is the now required iprodione. However, this deficiency in the combined references is addressed by Benkovic.
Benkovic teaches that it was known to combine iprodione and A. pullulans together to form fungicidal combinations (See Table 2 combinations of E3 iprodione with A. pullulans and a boron compound).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have substituted the fludioxonil of ‘345 and/or added the iprodinil of Benkovic to the composition taught by the combined references as discussed above because it was known in the art to combine iprodione with A. pullulans in order to form fungicidal compositions and A. pullulans are the source of the claimed I-A1/aureobasidin A and the other fungicidal aureobasidins and it would be obvious to combine the fungicidal active components produced by A. pullulans with the fungicidal iprodione and/or the fungicidal fludioxonil in order to form the most effective fungicidal combinations which are useful for treating phytopathogenic fungi. One of ordinary skill in the art would have been motivated to form the claimed combinations when looking to the combined prior art because it is known, "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
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 1-8, 15-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 8, 16-23 of copending Application No. 18000576 in view of AU2018233513A1 (‘513) and Benkovic et al. (US20160324160).
‘576 teaches compositions comprising the same depsipeptides of formula (I-A1) with other fungicides, and wherein the compositions comprise the same additional depsipeptides of formula (I-A), specifically aureobasidin E and/or G; and/or can further comprise the additional depsipeptide of formula (I-B), and wherein the claimed component (A) contains the same depsipeptides of (I-A1) and (I-A) present in the same amounts as are instantly claimed, and wherein the component (A) and component (B) are used in the same ratios instantly claimed, and wherein composition comprises the same carrier and/or formulation adjuvant.
‘576 does not teach wherein their component (B) is/includes the claimed/elected fludioxonil and/or the now instantly claimed iprodione. These deficiencies are addressed by ‘513 and Benkovic.
‘513 teaches combinations of the elected fludioxonil and a mixture of A. pullulans strains and wherein the combinations can exhibit synergy and wherein the fludioxonil is used in lower amounts, e.g. .0025 g/L to 5 g/L of the preparation, (See entire document; abstract; claims; pg. 3, ln. 33-pg. 4, ln. 15; pg. 5, ln. 18-28; pg. 6, ln. 15-pg. 7, ln. 29; pg. 9, ln. 1-19; pg. 15, concentrations of chemical fungicides; tables showing results of fludioxonil and A. pullulans strains (all examples/biological testing examples)).
Benkovic teaches that it was known to combine iprodione and A. pullulans together to form fungicidal combinations (See Table 2 combinations of E3 iprodione with A. pullulans and a boron compound).
It would have been obvious to switch out the component B of ‘576, and/or add the fludioxonil of ‘513 and/or add the iprodione of Benkovic into the component B of ‘576 in order to develop the instantly claimed combinations and to use the fludioxonil and/or iprodione with the component A) of ‘576 in the claimed ratios because it was known to form fungicidal compositions comprising aureobasidin A as its fermentation product which comprises aureobasidins A-R and therefore contains aureobasidin E and/or G, and to mix the aureobasidins with additional fungicidal actives which are not limite and it would be obvious to formulate these combinations with carriers/adjuvants, etc. It would be obvious to use fludioxonil and/or iprodione as the additional chemical fungicide with the aureobasidin composition of ‘576 because fludioxonil and/or iprodione are known to be compatible with A. pullulans which are the strains which produce the claimed aureobasidins/Aureobasidin A and fermentation mixture comprising other aureobasidins A-R, and because fludioxonil and/or iprodione are compatible with A. pullulans it would be compatible with the aureobasidin A, etc. of ‘576 and it is known, "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
It also would have been obvious to optimize the amounts of component A to the instantly claimed component B of fludioxonil to read on the claimed weight ratio of 100:1 to 1:1000 (A to B) and the other weight ratios now claimed, because for instance the easiest ratio of 1:1 is encompassed by applicant’s claimed ranges, because each agent was known in the art to exhibit fungicidal activity against phytopathogenic fungi and it was known to combine fludioxonil and/or iprodione with A. pullulans strains to provide synergistic and/or improved fungicidal activity. Thus, it would be obvious to optimize the amounts/ratios of fludioxonil and/or iprodione with the claimed component A/aureobasidins in order to form the most effective and/or synergistic fungicidal combinations because "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) and because the courts have determined that, “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. ‘[W]here 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.’" In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, one of ordinary skill in the art would conclude that the instantly claimed composition is obvious when taken in view of the copending ‘576 application and the combined reference.
Claims 1-8, 15-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 8, 15-17 of copending Application No. 18000438 in view of AU2018233513A1 (‘513) and Benkovic et al. (US20160324160).
‘438 teaches compositions comprising the same depsipeptides of formula (I-A1) with other fungicides, and wherein the compositions comprise the same additional depsipeptides of formula (I-A), specifically aureobasidin E and/or G; and/or can further comprise the additional depsipeptide of formula (I-B), and wherein the claimed component (A) contains the same depsipeptides of (I-A1) and (I-A) present in the same amounts as are instantly claimed, and wherein the component (A) and component (B) are used in the same ratios instantly claimed, and wherein composition comprises the same carrier and/or formulation adjuvant.
‘438 does not teach wherein their component (B) is/includes the claimed/elected fludioxonil and/or the newly claimed and/or required iprodione. These deficiencies are addressed by ‘513 and Benkovic.
‘513 teaches combinations of the elected fludioxonil and a mixture of A. pullulans strains and wherein the combinations can exhibit synergy and wherein the fludioxonil is used in lower amounts, e.g. .0025 g/L to 5 g/L of the preparation, (See entire document; abstract; claims; pg. 3, ln. 33-pg. 4, ln. 15; pg. 5, ln. 18-28; pg. 6, ln. 15-pg. 7, ln. 29; pg. 9, ln. 1-19; pg. 15, concentrations of chemical fungicides; tables showing results of fludioxonil and A. pullulans strains (all examples/biological testing examples)).
Benkovic teaches that it was known to combine iprodione and A. pullulans together to form fungicidal combinations (See Table 2 combinations of E3 iprodione with A. pullulans and a boron compound).
It would have been obvious to switch out the component B of ‘438, and/or add the fludioxonil and/or the iprodione of ‘513 and Benkovic into the component B of ‘438 in order to develop the instantly claimed combinations and to use the fludioxonil and/or the iprodione with the component A) of ‘438 in the claimed ratios because it was known to form fungicidal compositions comprising aureobasidin A as its fermentation product which comprises aureobasidins A-R and therefore contains aureobasidin E and/or G, and to mix the aureobasidins with additional fungicidal actives which are not limited and formulate them with carriers/adjuvants, etc. It would be obvious to use fludioxonil and/or the iprodione as the additional chemical fungicide with the aureobasidin composition of ‘438 because fludioxonil and/or the iprodione are known to be compatible with A. pullulans which are the strains which produce the claimed aureobasidins/Aureobasidin A and fermentation mixture comprising other aureobasidins A-R, and because fludioxonil and/or the iprodione are compatible with A. pullulans it would be compatible with the aureobasidin A, etc. of ‘438 and it is known, "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
It also would have been obvious to optimize the amounts of component A to the instantly claimed component B of fludioxonil and/or the iprodione to read on the claimed weight ratio of 100:1 to 1:1000 (A to B) and the other ratios now claimed, for instance the easiest ratio of 1:1 which is encompassed by applicant’s claimed range, because each agent was known in the art to exhibit fungicidal activity against phytopathogenic fungi and it was known to combine fludioxonil and/or the iprodione with A. pullulans strains to provide synergistic and/or improved fungicidal activity. Thus, it would be obvious to optimize the amounts/ratios of fludioxonil and/or the iprodione with the claimed component A/aureobasidins in order to form the most effective and/or synergistic fungicidal combinations because "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) and because the courts have determined that, “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. ‘[W]here 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.’" In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, one of ordinary skill in the art would conclude that the instantly claimed composition is obvious when taken in view of the copending ‘438 application and the combined reference.
Claims 1-8, 15-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 8, 16-22 of Application No. 18000454 (now claims 1-5, 11-16 of issued patent US12575567) in view of AU2018233513A1 (‘513) and Benkovic et al. (US20160324160).
‘454 teaches compositions comprising the same depsipeptides of formula (I-A1) with other fungicides, and wherein the compositions comprise the same additional depsipeptides of formula (I-A), specifically aureobasidin E and/or G; and/or can further comprise the additional depsipeptide of formula (I-B), and wherein the claimed component (A) contains the same depsipeptides of (I-A1) and (I-A) present in the same amounts as are instantly claimed, and wherein the component (A) and component (B) are used in the same ratios instantly claimed, and wherein composition comprises the same carrier and/or formulation adjuvant.
‘454 does not teach wherein their component (B) is/includes the claimed/elected fludioxonil and/or the newly claimed and/or required iprodione. These deficiencies are addressed by ‘513 and Benkovic.
‘513 teaches combinations of the elected fludioxonil and a mixture of A. pullulans strains and wherein the combinations can exhibit synergy and wherein the fludioxonil is used in lower amounts, e.g. .0025 g/L to 5 g/L of the preparation, (See entire document; abstract; claims; pg. 3, ln. 33-pg. 4, ln. 15; pg. 5, ln. 18-28; pg. 6, ln. 15-pg. 7, ln. 29; pg. 9, ln. 1-19; pg. 15, concentrations of chemical fungicides; tables showing results of fludioxonil and A. pullulans strains (all examples/biological testing examples)).
Benkovic teaches that it was known to combine iprodione and A. pullulans together to form fungicidal combinations (See Table 2 combinations of E3 iprodione with A. pullulans and a boron compound).
It would have been obvious to switch out the component B of ‘454, and/or add the fludioxonil and/or the iprodione of ‘513 and Benkovic into the component B of ‘454 in order to develop the instantly claimed combinations and to use the fludioxonil and/or the iprodione with the component A) of ‘454 in the claimed ratios because it was known to form fungicidal compositions comprising aureobasidin A as its fermentation product which comprises aureobasidins A-R and therefore contains aureobasidin E and/or G, and to mix the aureobasidins with additional fungicidal actives which are not limited and formulate them with carriers/adjuvants, etc. It would be obvious to use fludioxonil and/or the iprodione as the additional chemical fungicide with the aureobasidin composition of ‘454 because fludioxonil and/or the iprodione are known to be compatible with A. pullulans which are the strains which produce the claimed aureobasidins/Aureobasidin A and fermentation mixture comprising other aureobasidins A-R, and because fludioxonil and/or the iprodione are compatible with A. pullulans it would be compatible with the aureobasidin A, etc. of ‘454 and it is known, "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
It also would have been obvious to optimize the amounts of component A to the instantly claimed component B of fludioxonil and/or the iprodione to read on the claimed weight ratio of 100:1 to 1:1000 (A to B) and the other weight ratios now claimed, for instance the easiest ratio of 1:1 which is encompassed by applicant’s claimed range, because each agent was known in the art to exhibit fungicidal activity against phytopathogenic fungi and it was known to combine fludioxonil and/or the iprodione with A. pullulans strains to provide synergistic and/or improved fungicidal activity. Thus, it would be obvious to optimize the amounts/ratios of fludioxonil and/or the iprodione with the claimed component A/aureobasidins in order to form the most effective and/or synergistic fungicidal combinations because "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) and because the courts have determined that, “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. ‘[W]here 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.’" In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, one of ordinary skill in the art would conclude that the instantly claimed composition is obvious when taken in view of the copending ‘454 application and the combined reference.
Claims 1-8, 15-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 7, 16-19 of Application No. 18000605 (now claims 1-6, 14-18 of issued patent US12527322) in view of AU2018233513A1 (‘513) and Benkovic et al. (US20160324160).
‘605 teaches compositions comprising the same depsipeptides of formula (I-A1) with other fungicides, and wherein the compositions comprise the same additional depsipeptides of formula (I-A), specifically aureobasidin E and/or G; and/or can further comprise the additional depsipeptide of formula (I-B), and wherein the claimed component (A) contains the same depsipeptides of (I-A1) and (I-A) present in the same amounts as are instantly claimed, and wherein the component (A) and component (B) are used in the same ratios instantly claimed, and wherein composition comprises the same carrier and/or formulation adjuvant. ‘605 does not teach wherein their component (B) is/includes the claimed/elected fludioxonil and/or the newly claimed and/or required iprodione. These deficiencies are addressed by ‘513 and Benkovic.
‘513 teaches combinations of the elected fludioxonil and a mixture of A. pullulans strains and wherein the combinations can exhibit synergy and wherein the fludioxonil is used in lower amounts, e.g. .0025 g/L to 5 g/L of the preparation, (See entire document; abstract; claims; pg. 3, ln. 33-pg. 4, ln. 15; pg. 5, ln. 18-28; pg. 6, ln. 15-pg. 7, ln. 29; pg. 9, ln. 1-19; pg. 15, concentrations of chemical fungicides; tables showing results of fludioxonil and A. pullulans strains (all examples/biological testing examples)).
Benkovic teaches that it was known to combine iprodione and A. pullulans together to form fungicidal combinations (See Table 2 combinations of E3 iprodione with A. pullulans and a boron compound).
It would have been obvious to switch out the component B of ‘605, and/or add the fludioxonil and/or the iprodione of ‘513 and Benkovic into the component B of ‘605 in order to develop the instantly claimed combinations and to use the fludioxonil and/or the iprodione with the component A) of ‘605 in the claimed ratios because it was known to form fungicidal compositions comprising aureobasidin A as its fermentation product which comprises aureobasidins A-R and therefore contains aureobasidin E and/or G, and to mix the aureobasidins with additional fungicidal actives which are not limited and formulate them with carriers/adjuvants, etc. It would be obvious to use fludioxonil as the additional chemical fungicide with the aureobasidin composition of ‘605 because fludioxonil and/or the iprodione are known to be compatible with A. pullulans which are the strains which produce the claimed aureobasidins/Aureobasidin A and fermentation mixture comprising other aureobasidins A-R, and because fludioxonil and/or the iprodione are compatible with A. pullulans it would be compatible with the aureobasidin A, etc. of ‘605 and it is known, "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
It also would have been obvious to optimize the amounts of component A to the instantly claimed component B of fludioxonil and/or the iprodione to read on the claimed weight ratio of 100:1 to 1:1000 (A to B) and the other weight ratios now claimed, for instance the easiest ratio of 1:1 which is encompassed by applicant’s claimed range, because each agent was known in the art to exhibit fungicidal activity against phytopathogenic fungi and it was known to combine fludioxonil and/or the iprodione with A. pullulans strains to provide synergistic and/or improved fungicidal activity. Thus, it would be obvious to optimize the amounts and/or ratios of fludioxonil and/or the iprodione with the claimed component A/aureobasidins in order to form the most effective and/or synergistic fungicidal combinations because "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) and because the courts have determined that, “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. ‘[W]here 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.’" In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, one of ordinary skill in the art would conclude that the instantly claimed composition is obvious when taken in view of the copending ‘605 application and the combined reference.
Claims 1-8, 15-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 of copending Application No. 18711631 (this is a clear typo and should read 18711361 as noted in applicant’s response, the examiner has corrected the ‘631 to ‘361 in the rejection below) in view of AU2018233513A1 (‘513) and Benkovic et al. (US20160324160).
‘361 teaches compositions comprising the same depsipeptides of formula (I-A1) with other fungicides, and wherein the compositions comprise the same additional depsipeptides of formula (I-A), specifically aureobasidin E and/or G; and/or can further comprise the additional depsipeptide of formula (I-B), and wherein the claimed component (A) contains the same depsipeptides of (I-A1) and (I-A) present in the same amounts as are instantly claimed, and wherein the component (A) and component (B) are used in the same ratios instantly claimed, and wherein composition comprises the same carrier and/or formulation adjuvant. ‘361 does not teach wherein their component (B) is/includes the claimed/elected fludioxonil and/or the newly claimed and/or required iprodione. These deficiencies are addressed by ‘513 and Benkovic.
‘513 teaches combinations of the elected fludioxonil and a mixture of A. pullulans strains and wherein the combinations can exhibit synergy and wherein the fludioxonil is used in lower amounts, e.g. .0025 g/L to 5 g/L of the preparation, (See entire document; abstract; claims; pg. 3, ln. 33-pg. 4, ln. 15; pg. 5, ln. 18-28; pg. 6, ln. 15-pg. 7, ln. 29; pg. 9, ln. 1-19; pg. 15, concentrations of chemical fungicides; tables showing results of fludioxonil and A. pullulans strains (all examples/biological testing examples)).
Benkovic teaches that it was known to combine iprodione and A. pullulans together to form fungicidal combinations (See Table 2 combinations of E3 iprodione with A. pullulans and a boron compound).
It would have been obvious to switch out the component B of ‘361, and/or add the fludioxonil and/or the iprodione of ‘513 and Benkovic into the component B of ‘361 in order to develop the instantly claimed combinations and to use the fludioxonil and/or the iprodione with the component A) of ‘361 in the claimed ratios because it was known to form fungicidal compositions comprising aureobasidin A as its fermentation product which comprises aureobasidins A-R and therefore contains aureobasidin E and/or G, and to mix the aureobasidins with additional fungicidal actives which are not limited and formulate them with carriers/adjuvants, etc. It would be obvious to use fludioxonil and/or the iprodione as the additional chemical fungicide with the aureobasidin composition of ‘361 because fludioxonil and/or the iprodione are known to be compatible with A. pullulans which are the strains which produce the claimed aureobasidins/Aureobasidin A and fermentation mixture comprising other aureobasidins A-R, and because fludioxonil and/or the iprodione are compatible with A. pullulans it would be compatible with the aureobasidin A, etc. of ‘361 and it is known, "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
It also would have been obvious to optimize the amounts of component A to the instantly claimed component B of fludioxonil and/or the iprodione to read on the claimed weight ratio of 100:1 to 1:1000 (A to B) and the other ratios now claimed, for instance the easiest ratio of 1:1 which is encompassed by applicant’s claimed range, because each agent was known in the art to exhibit fungicidal activity against phytopathogenic fungi and it was known to combine fludioxonil and/or the iprodione with A. pullulans strains to provide synergistic and/or improved fungicidal activity. Thus, it would be obvious to optimize the amounts and/or ratios of fludioxonil and/or the iprodione with the claimed component A/aureobasidins in order to form the most effective and/or synergistic fungicidal combinations because "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) and because the courts have determined that, “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. ‘[W]here 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.’" In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Thus, one of ordinary skill in the art would conclude that the instantly claimed composition is obvious when taken in view of the copending ‘361 application and the combined reference.
These are provisional nonstatutory double patenting rejections.
Response to Arguments/Remarks
Applicant’s amendments to the claim have overcome the previous claim objections and 112(b) rejections which are hereby withdrawn. Applicant’s abandonment of copending 18000343 has also rendered moot the double patenting rejection over this application.
Applicant’s arguments with respect to the 103 rejections of record have been fully considered but are not persuasive at this time. Applicants first argue that ‘345 does not elaborate on what strains of A. pullulans are contemplated for their purpose. The examiner respectfully points out that they do not need to teach which strains are contemplated as they teach that the claimed depsipeptides are known to be antifungal agents and that these compounds can be produced from A. pullulans. Thus, applicants arguments about which strains do or do not product aureobasidins A, E, G, etc. are not persuasive because the claimed compounds are known antifungals produced by A. pullulans and are known to be effective anti-fungals against the claimed organisms (Specifically with respect to aureobasidin A). Thus, one of ordinary skill in the art would select the A. pullulans culture/fermentation broth that produces the known antifungals A-R to use as an antifungal agent. Further, nothing in the instant claim 1 for instance requires any specific amounts of the claimed aureobasidins contrary to applicants arguments about the amounts produced the A. pullulans nor do applicant’s claims require the aureobasidins to be from a specific strain or produced via a specific method. The compounds are known to come from A. pullulans as is taught by WO ‘375. Thus, the A. pullulans fermentation broths, etc. used in WO’375 are those that produce the claimed aureobasidins, e.g. A-R as is taught by WO’375. Applicants then argue that AU ‘513 teaches that some strains of A. pullulans when combined with fludioxonil are synergistic in some circumstances. The examiner respectfully points out that nothing in the instant claims excludes anything from applicant’s claimed combination/composition as the claims use comprising language. Further, nothing in the instant claims requires any synergy as applicants claims are to a combination in any amounts/ratios with no exclusions as to other components. Thus, for instance applicant’s claims do not exclude fermentation broths of A. pullulans which contain 1 molecule of aureobasidin A, nor does applicant’s claim 1 exclude cyprodinil, etc. which are known to exhibit synergistic effects against specific organisms. Additionally, nothing in the instant claims requires any synergistic effects or synergistic amounts of the claimed combinations and the examiner respectfully points out that applicant’s own argued results are not commensurate in scope with the instant claims as they are currently written for the reasons discussed above which are incorporated herein. Additionally, some of applicant’s argued unexpected/synergistic results do not actually appear to be statistically significant, e.g. Table 2, expected additive activity 42%, observed activity 47%, and for instance these results which do not appear to be statistically significant fall within applicant’s newly claimed ratio ranges. See MPEP716.02(b) which states that the burden is on applicant to establish that their argued results are in fact unexpected and significant. Specifically, that “The evidence relied upon should establish ‘that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance.’” Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat. App. & Inter. 1992). In the instant case, applicant’s data does not support that applicant’s unexpected results are commensurate with applicant’s instant claim scope, as clearly it appears that specific ratios and/or amounts of aureobasidin A with iprodione and aureobsidin A with fludioxonil would be required to achieve synergy and that not every ratio as claimed achieves the argued unexpected/synergistic fungicidal activity.
Applicants then argue the rejection of claim 6 and that this claim is non-obvious for the reasons of record they presented in their arguments. The examiner respectfully disagrees for the reasons discussed above which are incorporated herein.
Applicant’s then argue the double patenting rejections are overcome for the same reasons which are discussed above with respect to AU ‘513. The examiner respectfully disagrees for the reasons of record which are discussed above and incorporated herein with the exception of application 18000343 which is withdrawn because this application has been abandoned.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Erin E Hirt whose telephone number is (571)270-1077. The examiner can normally be reached 10:30-7:30 ET M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue X Liu can be reached at 571-272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERIN E HIRT/Primary Examiner, Art Unit 1616
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