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 .
Election/Restrictions
Applicant's election with traverse of group I, claims 1-8 in the reply filed on 09/04/25 is acknowledged. The traversal is on the ground(s) that the international preliminary report found unity and because a national stage application containing claims to different categories of invention will be considered to have unity of invention if the claims are drawn only to a product and process of use of said product. This is not found persuasive because Agrobiologics (WO20181052345) teaches combinations of the claimed aureobasidin A and fungicides which are not limited in scope and would broadly include the claimed MAP/histidine kinase inhibitors and wherein the combinations of Agrobiologics are useful for controlling Alternaria sp. and EPA teaches that the ipriodione is known to be useful against Alternaria sp. and other phytopathogenic fungi and it is obvious to combine fungicides together in order to form effective fungicidal combinations as was previously discussed in the original election/restriction requirement. Thus, these arguments are not persuasive.
The requirement is still deemed proper and is therefore made FINAL.
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 Objections
Claims 1, 3, and 6 are objected to because of the following informalities: The formulae in claims 1, 3, and 6 are very pixelated and have very small fonts and the subscripts and superscripts are barely legible as presented in the instant claims.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 2-6 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 3 and 6 are indefinite because the variable that the examiner believes is X with a very hard to read superscript (I believe X4), is chemically incomplete as written as applicants state CH. However, CH would not complete the octet for the carbon atom in this ring. Thus, it is completely unclear to the examiner what group is intended to complete the octet of the carbon atom at this position as claimed as the compound with CH as claimed is incomplete. The examiner notes that the specification supports wherein X4 is CH2 in the exemplified examples of I-A2 and I-A3.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claims 2 and 5 each recites at least one broad recitation of 100:1 to 1:1000 in claim 2 and 10% to 99.99% by weight, and 0.1 to 90% by weight in claim 5, and the claim also recites “preferably…”, “more preferably…” and/or “even more preferably…”, etc. which are different narrower statements of the ranges/limitations. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. As applicants have multiple instances of these broad ranges and narrow ranges together in the claims the examiner requests applicant’s help to ensure that all of these instances are addressed in the next response.
Claim 4 is indefinite because it recites wherein component (A) further comprises at least one other cyclic depsipeptide of formula (1-A) or a stereoisomer thereof. However, no formula 1-A is present in claim 4 or claim 1 from which it depends and claims are supposed to be complete in themselves (See MPEP 2173.05(s)), and are not supposed to reference figures/formula in the references which can be replicated in the claim. Do applicant’s actually intend this claim to depend from claim 3 and it is actually a typo having it depend from claim 1 since claim 3 is the first instance formula (1-A) is disclosed? Or did applicant’s actually want claim 4 to depend from claim 1 and just have (A) of claim 1 further comprise at least one other depsipeptide selected from the group consisting of aureobasidin E and aureobasidin G, as the of formula (I-A) or stereoisomer thereof language is actually unnecessary to the claim in this case? If applicant’s intend claim 4 to depend from claim 1 and deleting this language from the claim would overcome this rejection.
Claim 5 is also indefinite because it recites “…and from 0.1 to 90% by weight, preferably…one or more other cyclic depsipeptides of formula (1-A) or stereoisomers thereof. Claim 5 depends from claim 1 which makes no mention of formula (1-A) or stereoisomers thereof nor is the structure disclosed. Thus, claim 5 lacks antecedent basis for this structure, etc. As formula 1-A is first presented in claim 3, the examiner is interpreting claim 5 to depend from claim 3 for compact prosecution purposes.
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, and 7-8 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, ‘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, and 7-8, ‘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 the ratios of applicant’s component A to component B of from 100:1 to 1:100 which are instantly claimed.
However, this deficiency in ‘345 is 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 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 because it was known in the art to optimize the amounts of effective fungicidal agents in order to form the most effective herbicidal 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 1:100 (A to B), 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 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).
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, and 7-8 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 and 7-8 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.
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 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5 and 8 of copending Application No. 18000576 in view of of AU2018233513A1 (‘513).
‘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. This deficiency is 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)).
It would have been obvious to switch out the component B of ‘576, and/or add the fludioxonil of ‘513 into the component B of ‘576 in order to develop the instantly claimed combinations and to use the fludioxonil 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 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 ‘576 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 ‘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 1:100 (A to B), 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 with A. pullulans strains to provide synergistic fungicidal activity. 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).
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 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5 and 8 of copending Application No. 18000343 in view of of AU2018233513A1 (‘513). ‘343 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.
‘343 does not teach wherein their component (B) is/includes the claimed/elected fludioxonil. This deficiency is 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)).
It would have been obvious to switch out the component B of ‘343, and/or add the fludioxonil of ‘513 into the component B of ‘343 in order to develop the instantly claimed combinations and to use the fludioxonil with the component A) of ‘343 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 ‘343 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 ‘343 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 1:100 (A to B), 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 with A. pullulans strains to provide synergistic fungicidal activity. 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).
Thus, one of ordinary skill in the art would conclude that the instantly claimed composition is obvious when taken in view of the copending ‘343 application and the combined reference.
Claims 1-8 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 of copending Application No. 18000438 in view of of AU2018233513A1 (‘513). ‘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. This deficiency is 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)).
It would have been obvious to switch out the component B of ‘438, and/or add the fludioxonil of ‘513 into the component B of ‘438 in order to develop the instantly claimed combinations and to use the fludioxonil 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 as the additional chemical fungicide with the aureobasidin composition of ‘438 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 ‘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 to read on the claimed weight ratio of 100:1 to 1:100 (A to B), 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 with A. pullulans strains to provide synergistic fungicidal activity. 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).
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 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 8, 16-22 of copending Application No. 18000454 in view of AU2018233513A1 (‘513). ‘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. This deficiency is 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)).
It would have been obvious to switch out the component B of ‘454, and/or add the fludioxonil of ‘513 into the component B of ‘454 in order to develop the instantly claimed combinations and to use the fludioxonil 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 as the additional chemical fungicide with the aureobasidin composition of ‘454 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 ‘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 to read on the claimed weight ratio of 100:1 to 1:100 (A to B), 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 with A. pullulans strains to provide synergistic fungicidal activity. 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).
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 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 7, 16-19 of copending Application No. 18000605 in view of AU2018233513A1 (‘513).
‘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. This deficiency is 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)).
It would have been obvious to switch out the component B of ‘605, and/or add the fludioxonil of ‘513 into the component B of ‘605 in order to develop the instantly claimed combinations and to use the fludioxonil 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 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 ‘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 to read on the claimed weight ratio of 100:1 to 1:100 (A to B), 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 with A. pullulans strains to provide synergistic fungicidal activity. 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).
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 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 of copending Application No. 18711631 in view of AU2018233513A1 (‘513).
‘631 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 carri