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
The office acknowledges Applicants filing of the response to the restriction election requirement (8/8/2025) on 11/6/2025. Applicants have provisionally elected Group I, claims 1-14, fungus as the pest and additional pesticide with traverse. Applicants argue that the cited documents do not teach the suspension concentrate (SC) formulation of cymoxanil that exhibits stability both with respect to cymoxanil degradation and to crystal growth (emphasis added). It is argued that neither D1 nor D2 disclose or suggest the specific parameters (e.g. stability, particle size) necessary to control crystal growth of cymoxanil as achieved by the present invention. In response, there is no limitation in terms of degradation, crystal growth, or particle size in the claims. The claims are to a stable suspension concentrate comprising cymoxanil and a buffering system. CN 106489922 (IDS) teach stable suspension concentrate comprising cymoxanil and pH adjusting agents (e.g. acetic acid). BE 1021447 (IDS) teach concentrated aqueous suspension formulation comprising cymoxanil and acetic acid. Morrica et al. (IDS) discloses a study regarding the stability of cymoxanil in aqueous solution at various pH values and temperatures that includes the buffering system, acetic acid/acetate which confer a pH of about 5 (table 1). From Fig. 2 and Table 3, it is noted that a pH of 5 is the limit value for stability and higher values determine a faster degradation. From the combined teachings of the prior art a person of ordinary skill in the art would have found it obvious to arrive at the stable suspension concentrate comprising cymoxanil and the buffering system. Hence this technical feature common to the groups of inventions (I-III) is not a special technical feature as it does not make a contribution over the prior art.
Applicants argue that there would be no undue search burden in searching the species as disclose in the dependent claims. In response, Applicants are reminded that search burden is not relevant in a national stage application. The restriction requirement is proper and thus maintained. The restriction requirement is made final.
Claims 1-37, 39-41 are pending. Claims 15-37, 39-41 are withdrawn from further consideration pursuant to 37 C.F.R. 1.142(b), as being drawn to non-elected subject matter. Claims 1-14 read on the elected group and species and are examined based on the meris herein.
Application Priority
This application filed 12/08/2022 is a National Stage entry of PCT/IL2021/ 050662, International Filing Date: 06/03/2021, PCT/IL2021/050662 Claims Priority from Provisional Application 63035960, filed 06/08/2020.
Information Disclosure Statement
The information disclosure statement(s) (IDS) filed on 11/6/2025 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the IDS is being considered by the Examiner.
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) 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Luong (AU 4889400 A) in view of Morrica et al. (IDS: J of Agricultural and Food Chemistry, 2004, 52, 99-104).
Luong disclose oil in water pesticide formulation comprising an ethylene bisdithiocarbamate fungicide (e.g. mancozeb) and cymoxanil, 1 to 10 percent by weight, buffer comprising an oil soluble acid and a water soluble acid (e.g. acetic acid), in an amount of 0.5 percent to 3 percent by weight, thickeners; from 1 percent to 5 percent, by weight, of one or more surfactants; from 1 percent to 5 percent, by weight, of one or more a dispersants; water; and an agronomically acceptable oil (See claims 1-4). It is taught that the type and the amount of acidic buffer reagents used are important to ensure the stability of the final blended product. The combined acid buffer reagents should maintain the pH from 4.0 to 5.5, preferably from 4.5 to 5.0, over one year of storage at room temperature (See p 2, lines 26-29). It is also taught that one advantage of the compositions of this invention is that not only are they stable themselves, but when diluted with water, for example, in a spray tank, they form a stable aqueous mixture. This is important because many fungicide mixture formulations do not form stable mixtures when diluted with water (See p 5, para 1). Luong teach in page 7, lines 8-10, addition of pesticide, mancozeb and ensuring that the pH is 4.8 or lower.
Luong is not explicit in teaching the buffering system in the composition.
Morrica discloses a study regarding the stability of cymoxanil in aqueous solution at various pH values and temperatures that includes the buffering system, acetic acid/sodium acetate which confer a pH of about 5 (table 1). From fig. 2 and Table 3, it is noted that a pH of 5 is the limit value for stability and higher values determine a faster degradation.
From Morrica a skilled artisan before the effective filing date of the invention would have found it obvious to add the buffering system comprising acetic acid/sodium acetate in the composition comprising cymoxanil to arrive at a stable composition and at a certain pH. A person skilled in the art would have found it obvious to add sodium acetate in addition to the acetic acid in Luong composition to arrive at the stable suspension concentrate comprising cymoxanil (pH 5.0 for example) from Morrica. A person skilled in the art would have been motivated to do so is to arrive at the stable suspension concentrate with a reasonable amount of success and use the same as a fungicidal composition. Thus claims 1-2 would have been obvious from the prior art teachings. As to claim 3, the stable suspension concentrate composition comprising the same agents and at pH, for e.g. 5.0 as in instant claim 1 will have the same properties including persistent foam. As to claims 4-5, 7-9, Luong teach pesticide formulation comprises cymoxanil (1 to 10 percent by weight), buffer comprising a water soluble acid (e.g. acetic acid, in an amount of 0.5 percent to 3 percent by weight), additives such as thickeners, one or more surfactants, one or more a dispersants (from 1 percent to 5 percent, by weight), water and an agronomically acceptable oil. As to claims 6, 10 it is within the skill of an artisan to routinely adjust the amount of the components in a composition. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is noted that the reference Luong teach water and agronomically acceptable oil in the composition.
Claim(s) 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Luong (AU 4889400 A) in view of Morrica et al. (IDS: J of Agricultural and Food Chemistry, 2004, 52, 99-104) and further in view of Zhang (CN 103461339, see English translation).
Luong and Morrica as discussed above. The above rejection is incorporated herein.
The above prior art do not teach the additional pesticide as fluopicolide.
Zhang is explicit in teaching bactericidal composition containing fluopicolide and cymoxanil suspensions in treating crop diseases such as downy mildew, downy blight, epidemic disease, gray mold, powdery mildew, rice blast, banded sclerotial blight, leaf mold, resin disease, anthracnose, cladosporium cucumerinum, ring spot, blight, rust disease (claims 1-6).
From Zhang a skilled artisan before the effective filing date of the invention would have found it obvious to add fluopicolide in Luong’s composition that comprises cymoxanil. A skilled artisan would have been motivated to arrive at the claimed combination composition with a reasonable amount of success and to treat crop diseases. Thus claims 11-13 are addressed.
Claims 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang (CN 103461339) in view of Morrica et al. (IDS: J of Agricultural and Food Chemistry, 2004, 52, 99-104).
Zhang is explicit in teaching bactericidal composition containing fluopicolide and cymoxanil suspensions in treating crop diseases such as downy mildew, downy blight, epidemic disease, gray mold, powdery mildew, rice blast, banded sclerotial blight, leaf mold, resin disease, anthracnose, cladosporium cucumerinum, ring spot, blight, rust disease (claims 1-6). Zhang teach that the combination of fluopicolide and cymoxanil exhibit a synergistic effect, fluopicolide with cymoxanil is 1: 15 to 1: 5 [0118]. Zhang teach that the composition is prepared into suspending agent comprises the following components and contents: 0.5% to 50% of active ingredient A and the active ingredient B 0.5% to 50%, dispersant 1% to 10%, wetting agent 1% ~ 10%, antifoaming agent 0.01% 2%, thickening agent 0 to 2%, antifreeze 0 to 8%, de-ionized water add to 100 % (See [0017]. The composition can comprise a pH regulator 0.01% to 5% ([0021-22]). The sterilizing composition of the invention can be diluted prior to use by a user or used directly [0014].
Zhang teach composition containing fluopicolide and cymoxanil suspensions, the composition can comprise a pH regulator agent but is silent in teaching the buffering system or the pH of the composition.
Morrica teachings discussed as above. In summary, Morrica teach cymoxanil degradation in buffering agents. In particular the composition comprising cymoxanil and buffering system, acetic acid +sodium acetate at pH 5.0 is taught (See p 100, col. 1, last para and table 1). From fig. 2 and Table 3, it is noted that a pH of 5 is the limit value for stability and higher values determine a faster degradation. The reference demonstrates that cymoxanil solutions comprising buffering agents have been found to be stable at pH 2.8, 3.6 and 4. 5 (Fig. 2) and is unstable at and above pH 5.9.
A person of ordinary skill in the art before the effective filing date of the invention would have found it obvious from Morrica that cymoxanil is stable in buffering systems at a pH of about 5.0 and lower. Hence a person skilled in the art would have found it obvious to add a buffering system, e.g. acetic acid/sodium acetate, pH 5.0 to the composition of Zhang to formulate a stable composition and avoid degradation of cymoxanil. Thus the stable suspension concentrate composition formulated from the combined teachings of Zhang and Morrica addresses claims 1, 2, 11-13. As to the limitation of additional pesticide is stable at low pH of 2.5, Zhang teach the elected fluopicolide as the pesticide in combination with cymoxanil. As to claim 3, the stable suspension concentrate composition comprising the same agents and at pH, for e.g. 5.0 as in instant claim 1 will have the same properties including persistent foam. As to claims 4, 7-9, Zhang teach pesticide formulation comprises cymoxanil (0.5-50%), antifoaming agent 0.01% 2%, (additive). As to claims 5-6, 10 it is within the skill of an artisan to routinely adjust the amount of the components in a composition. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). In regards to the amount of buffer, Zhang teaches 0.01% to 5% of the pH regulator can be added. Hence a skilled artisan would have found it obvious to add for e.g. 0.5% of the buffering system to the composition comprising cymoxanil. Further it is within the skill of an artisan to adjust the amount of the buffering agent or system to arrive at a specific pH, e.g. 5.0 based on the other components of the composition. It is noted that the reference Zhang teach deionized water (agriculturally acceptable carrier) in the composition. As to claim 14, Zhang teach active components A and B (fluopicolide and cymoxanil) in the range of 0.5-50%, 0.01% to 5% of the pH regulator, dispersant 1% to 12%, wetting agent 1% ~ 8%, solvent 1% ~ 5%, emulsifying agent 1% ~ 8%, antifoaming agent 0.01% 2% %, thickening agent 0 to 2%, pH regulator 0.01% to 5%, de-ionized water add to 100 %. A person skilled in the art from the combined teachings would have found it obvious to arrive at a stable suspension formulation for example comprising, 20% of cymoxanil, 20% of fluopicolide, 0.5% of the buffering system (acetate+acetic acid), 10% additives (dispersant 2%, wetting agent 2%, solvent 2%, emulsifying agent 2%, antifoaming agent 2%, thickening agent 2%) and the rest deionized water, 50% (agriculturally acceptable carrier). It is within the skill of an artisan to routinely adjust the amount of the components in a composition. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Conclusion
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/Umamaheswari Ramachandran/ Primary Examiner, Art Unit 1627