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 .
DETAILED ACTION
Election/Restrictions
Applicant's election with traverse of group I, claims 1-8 in the reply filed on 09/18/25 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/’345 (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 claim pyrimethanil 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.
Nucleotide and/or Amino Acid Sequence Disclosures
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.”.
In the specification in at least Table A there are multiple entries which contain at least 4 “specifically defined” amino acids and as such are in need of sequence IDs, wherein “Specifically defined” means any of the standard 20 proteinogenic amino acids. Because under ST.25 rules, amino acid sequences with 4 or more specifically defined residues must be included in a sequence listing. Thus, the examiner asks applicants to ensure that any defined compounds in applicant’s tables which have 4 more specifically defined residues are given sequence IDs. For instance 1.003 and 1.012 in Table A, have at least 4 specifically defined residues. If there are any other compounds with at least 4 specifically defined amino acid residues the examiner asks for applicant’s assistance to ensure they are also given/assigned the appropriate sequence IDs.
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 also 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 what completes the octet of the carbon atom at this position since it cannot be CH as claimed.
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 recite multiple instances of a broad recitation followed by a narrow limitation, e.g. 100:1 to 1:500 in claim 2 and 10% to 99.99%, and .01 to 90% by weight in claim 5, etc. and the claims also recite “preferably…”, “more preferably…”, etc. which disclose 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 are (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. As there are multiple instances of this language in the claims the examiner asks applicant’s assistance in addressing all instances of this language in the claims.
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 placed in the claim. Do appli0cant’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). ‘345 further teaches that the fermentation broth derived from strains of A. pullulans as a live cell or a cell suspension to treat or control a fungal infection or agricultural products is disclosed (see entire document; pg. 4-5, bridging para.; pg. 7, ln. 18-25; claims 13-14; 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), and that the fermentation broths contain the antifungal agent aureobasidin A, which need not be isolated, purified, and/or reformulated for use as agricultural fungicide (pg. 5, ln. 1-3), and as discussed above
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 broadly teaches wherein the compositions comprise additional cyclic depsipeptides of formula I-A, specifically aureobasidin E and/or G, because ‘345 teaches that the fermentation broth of A. pullulans produces aureobasidin A-R. Thus, ‘345 teaches antifungal use of aureobasidin A with additional aureobasidins such as the claimed 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). Further, it would have been obvious to one of ordinary skill in the art to utilize additional natural antifungal agents to enhance or supplement activity and/or the spectrum of fungi being controlled.
Regarding claim 8, ‘345 teaches wherein their compositions further comprise an agriculturally acceptable carrier and/or formulation adjuvant, and optionally, a surfactant (see entire document; 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 cyprodinil or wherein component A) comprises the additional depsipeptide of formula I-A (e.g. aureobasidin E or G) in 0.1 to 90% by weight, or the ratios of applicant’s component A to component B of from 100:1 to 1:500 which are instantly claimed.
However, this deficiency in ‘345 is addressed by ‘513.
‘513 teaches combinations of the elected cyprodinil (with or without fludioxonil) and a mixture of A. pullulans strains and wherein the combinations can exhibit synergy and wherein the cyprodinil is can be used in lower amounts that it is typically used due to synergy, e.g. .0025 g/L to 5 g/L of the preparation, etc. (See entire document; abstract; claims; pg. 3, ln. 18-25; pg. 4, ln. 16-pg. 5, ln. 2; pg. 5, ln. 4-9; pg. 6, ln. 9-pg. 7, ln. 5; pg. 7, ln. 21-29; pg. 8, ln. 13-22; pg. 9, ln. 1-19; pg. 10, ln. 33-pg. 11, ln. 10; pg. 12, ln. 1-5; pg. 15, concentrations of chemical fungicides; tables showing results of cyprodinil and A. pullulans strains (all examples/biological testing examples with cyprodinil)).
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 cyprodinil and 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 the elected cyprodinil (with or without fludioxonil) as the additional chemical fungicides with the aureobasidin composition of ‘345 because cyprodinil (with or without fludioxonil) 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 cyprodinil (with or without fludioxonil) is compatible with A. pullulans they would obviously 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 1:500 (A to B) because each agent was known in the art to exhibit fungicidal activity against phytopathogenic fungi and it was known to combine cyprodinil 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 cyprodinil 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.
Claims 1-6, 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) as applied to claims 1-5 and 7-8 above, and further in view of Cichewicz et al. (US 2021/0317167, with priority to at least 07/19/19).
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)
Regarding claim 6, the combined references do not teach wherein their composition further comprise one or more cyclic depsipeptides of formula (I-B) or stereoisomers thereof. However, this deficiency in the combined references is addressed by Cichewicz.
Cichewicz discloses cyclic depsipeptide-class compounds, which are referred to as persephacins (paragraph 18). Persephacin (1), also known as persephacin A which reads on the claimed formula (I-B), 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 form the claimed combination of claim 6 which requires the claimed aureobasidin A, cyprodinil, and persephacin/persephacin A because each of the claimed components was already known in the art to have antifungal activity alone or with additional agricultural antifungal active ingredients. The ordinary skilled artisan would have been motivated to combine the antifungal activity and antifungal spectrum of activity of each of the claimed components as taught by the combination of the prior art in order to obtain combinations which are highly effective for agricultural fungi control. "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 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 cyprodinil. This deficiency is addressed by ‘513.
‘513 teaches combinations of the elected cyprodinil (with or without fludioxonil) and a mixture of A. pullulans strains and wherein the combinations can exhibit synergy and wherein the cyprodinil is can be used in lower amounts that it is typically used due to synergy, e.g. .0025 g/L to 5 g/L of the preparation, etc. (See entire document; abstract; claims; pg. 3, ln. 18-25; pg. 4, ln. 16-pg. 5, ln. 2; pg. 5, ln. 4-9; pg. 6, ln. 9-pg. 7, ln. 5; pg. 7, ln. 21-29; pg. 8, ln. 13-22; pg. 9, ln. 1-19; pg. 10, ln. 33-pg. 11, ln. 10; pg. 12, ln. 1-5; pg. 15, concentrations of chemical fungicides; tables showing results of cyprodinil and A. pullulans strains (all examples/biological testing examples with cyprodinil)).
It would have been obvious to switch out the component B of ‘576, and/or add the cyprodinil of ‘513 into the component B of ‘576 in order to develop the instantly claimed combinations and to use the cyprodinil 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 cyprodinil as the additional chemical fungicide with the aureobasidin composition of ‘576 because cyprodinil 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 cyprodinil is compatible with A. pullulans it would obviously 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 (cyprodinil) to read on the claimed weight ratio of 100:1 to 1:500 (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 cyprodinil with A. pullulans strains to provide effective and/or synergistic fungicidal activity. Thus, it would be obvious to optimize the amounts/ratios of cyprodinil 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 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 cyprodinil. This deficiency is addressed by ‘513.
‘513 teaches combinations of the elected cyprodinil (with or without fludioxonil) and a mixture of A. pullulans strains and wherein the combinations can exhibit synergy and wherein the cyprodinil is can be used in lower amounts that it is typically used due to synergy, e.g. .0025 g/L to 5 g/L of the preparation, etc. (See entire document; abstract; claims; pg. 3, ln. 18-25; pg. 4, ln. 16-pg. 5, ln. 2; pg. 5, ln. 4-9; pg. 6, ln. 9-pg. 7, ln. 5; pg. 7, ln. 21-29; pg. 8, ln. 13-22; pg. 9, ln. 1-19; pg. 10, ln. 33-pg. 11, ln. 10; pg. 12, ln. 1-5; pg. 15, concentrations of chemical fungicides; tables showing results of cyprodinil and A. pullulans strains (all examples/biological testing examples with cyprodinil)).
It would have been obvious to switch out the component B of ‘343, and/or add the cyprodinil of ‘513 into the component B of ‘343 in order to develop the instantly claimed combinations and to use the cyprodinil 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 cyprodinil as the additional chemical fungicide with the aureobasidin composition of ‘343 because cyprodinil 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 cyprodinil 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 cyprodinil to read on the claimed weight ratio of 100:1 to 1:500 (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 cyprodinil with A. pullulans strains to provide synergistic fungicidal activity. Thus, it would be obvious to optimize the amounts/ratios of cyprodinil 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. 18000333 in view of AU2018233513A1 (‘513). ‘333 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.
‘333 does not teach wherein their component (B) is/includes the claimed/elected cyprodinil. This deficiency is addressed by ‘513.
‘513 teaches combinations of the elected cyprodinil (with or without fludioxonil) and a mixture of A. pullulans strains and wherein the combinations can exhibit synergy and wherein the cyprodinil is can be used in lower amounts that it is typically used due to synergy, e.g. .0025 g/L to 5 g/L of the preparation, etc. (See entire document; abstract; claims; pg. 3, ln. 18-25; pg. 4, ln. 16-pg. 5, ln. 2; pg. 5, ln. 4-9; pg. 6, ln. 9-pg. 7, ln. 5; pg. 7, ln. 21-29; pg. 8, ln. 13-22; pg. 9, ln. 1-19; pg. 10, ln. 33-pg. 11, ln. 10; pg. 12, ln. 1-5; pg. 15, concentrations of chemical fungicides; tables showing results of cyprodinil and A. pullulans strains (all examples/biological testing examples with cyprodinil)).
It would have been obvious to switch out the component B of ‘333, and/or add the cyprodinil of ‘513 into the component B of ‘333
in order to develop the instantly claimed combinations and to use the cyprodinil with the component A) of ‘333 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 cyprodinil as the additional chemical fungicide with the aureobasidin composition of ‘333 because cyprodinil 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 cyprodinil is compatible with A. pullulans it would be compatible with the aureobasidin A, etc. of ‘333 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 cyprodinil to read on the claimed weight ratio of 100:1 to 1:500 (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 cyprodinil with A. pullulans strains to provide synergistic fungicidal activity. Thus, it would be obvious to optimize the amounts/ratios of cyprodinil 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 ‘333 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 cyprodinil. This deficiency is addressed by ‘513.
‘513 teaches combinations of the elected cyprodinil (with or without fludioxonil) and a mixture of A. pullulans strains and wherein the combinations can exhibit synergy and wherein the cyprodinil is can be used in lower amounts that it is typically used due to synergy, e.g. .0025 g/L to 5 g/L of the preparation, etc. (See entire document; abstract; claims; pg. 3, ln. 18-25; pg. 4, ln. 16-pg. 5, ln. 2; pg. 5, ln. 4-9; pg. 6, ln. 9-pg. 7, ln. 5; pg. 7, ln. 21-29; pg. 8, ln. 13-22; pg. 9, ln. 1-19; pg. 10, ln. 33-pg. 11, ln. 10; pg. 12, ln. 1-5; pg. 15, concentrations of chemical fungicides; tables showing results of cyprodinil and A. pullulans strains (all examples/biological testing examples with cyprodinil)).
It would have been obvious to switch out the component B of ‘454, and/or add the cyprodinil of ‘513 into the component B of ‘454 in order to develop the instantly claimed combinations and to use the cyprodinil 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 cyprodinil as the additional chemical fungicide with the aureobasidin composition of ‘454 because cyprodinil 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 cyprodinil 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 cyprodinil to read on the claimed weight ratio of 100:1 to 1:500 (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 cyprodinil with A. pullulans strains to provide synergistic fungicidal activity. Thus, it would be obvious to optimize the amounts/ratios of cyprodinil 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 cyprodinil. This deficiency is addressed by ‘513.
‘513 teaches combinations of the elected cyprodinil (with or without fludioxonil) and a mixture of A. pullulans strains and wherein the combinations can exhibit synergy and wherein the cyprodinil is can be used in lower amounts that it is typically used due to synergy, e.g. .0025 g/L to 5 g/L of the preparation, etc. (See entire document; abstract; claims; pg. 3, ln. 18-25; pg. 4, ln. 16-pg. 5, ln. 2; pg. 5, ln. 4-9; pg. 6, ln. 9-pg. 7, ln. 5; pg. 7, ln. 21-29; pg. 8, ln. 13-22; pg. 9, ln. 1-19; pg. 10, ln. 33-pg. 11, ln. 10; pg. 12, ln. 1-5; pg. 15, concentrations of chemical fungicides; tables showing results of cyprodinil and A. pullulans strains (all examples/biological testing examples with cyprodinil)).
It would have been obvious to switch out the component B of ‘605, and/or add the cyprodinil of ‘513 into the component B of ‘605 in order to develop the instantly claimed combinations and to use the cyprodinil 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 cyprodinil as the additional chemical fungicide with the aureobasidin composition of ‘605 because cyprodinil 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 cyprodinil 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,