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 .
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 2 and 4 are rejected under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2) as being anticipated by WO 2009074235 A1 to Assmann et al. (“Assmann”).
Claim interpretation
Claim 1 recites the limitation “[a] composition for controlling Cercospora leaf spot of beet”. The limitation “for controlling Cercospora leaf spot of beet” is interpreted as an intended use of a composition, which is not given any patentable weight.
Rejection
Assman relates to active compound combinations, in particular a fungicidal and/or insecticidal composition, comprising Isotianil (3,4-dichloro-N-(2-cyanophenyl)-5-isothiazolecarboxamide, CAS No 224049-04-1) and and at least one further insecticide of the fiprole group and one further insecticide of the neonicotinoids. Moreover, the invention relates to a method for curatively or preventively controlling the phytopathogenic fungi and/or microorganisms and/or pests of plants or crops. (Abstract).
Preferred preference is given to combinations comprising, e.g., compound (A) Isotianil and (B) ethiprole and (C) clothianidin. (p. 3, ll. 22-23). Per Applicant’s specification, para [0045], ethiprole is one of GABA-gated chloride channel blockers, and clothianidin is one of nicotinic acetylcholine receptor (nAChR) competitive modulators.
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.
Claims 5-8 and 12-15 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2009074235 A1 to Assmann et al. (“Assmann”).
Assman relates to active compound combinations, in particular a fungicidal and/or insecticidal composition, comprising Isotianil (3,4-dichloro-N-(2-cyanophenyl)-5-isothiazolecarboxamide, CAS No 224049-04-1) and at least one further insecticide of the fiprole group and one further insecticide of the neonicotinoids. Moreover, the invention relates to a method for curatively or preventively controlling the phytopathogenic fungi and/or microorganisms and/or pests of plants or crops. (Abstract).
Preferred preference is given to combinations comprising, e.g., compound (A) Isotianil and (B) ethiprole and (C) clothianidin. (p. 3, ll. 22-23). Per Applicant’s specification, para [0045], ethiprole is one of GABA-gated chloride channel blockers, and clothianidin is one of nicotinic acetylcholine receptor (nAChR) competitive modulators.
Per Assmann, among the plants that can be protected by the method according to the invention is beet (e.g. sugar beet, mangold and feed beet). (p. 33, ll. 2-3).
Per Assmann, among the diseases of plants or crops that can be controlled by the method according to the invention, mention may be made of leafspot diseases such as Cercospora diseases caused for example by Cercospora beticola. Cercospora leaf spot and blight (Cercospora kikuchii), Frogeye Leaf spot (Cercospora sojina). (p. 37, ll. 26-28 et seq.).
Per Assmann, it is also known that the combination of Isotianil with neonicotinoids is suitable for controlling phytopathogenic fungi (WO 2005/009131). (p. 1, ll. 26-27). Assmann discloses a method for curatively or preventively controlling the phytopathogenic fungi and/or microorganisms and/or pests of plants or crops comprising the use of a fungicide or insecticide composition according to the invention by application to the seed, the plant or to the fruit of the plant or to the soil in which the plant is growing or in which it is desired to grow. (p. 7, ll. 8-10).
Per Assmann, in a very particular embodiment a method for curatively or preventively controlling the phytopathogenic fungi and/or microorganisms and/or pests of plants or crops is described comprising the use of the combination of (A) and (B) and (C) by application to the seed, plant propagation material, the plant or to the fruit of genetically modified plants. (p. 26, ll. 1-4). A person of skill in the art would understand application to plant propagation material to be inclusive of treating the seedbed for culturing the plant body.
Assmann reports with reference to Table D-I, which includes data on testing of inventive compound combinations, to include on leaves, that “[t]he table below clearly shows that the observed activity of the active compound combination according to the invention is greater than the calculated activity, i.e. a synergistic effect is present.”
Per Assmann, “[t]he treatment of plants and plant parts with the active compound combination according to the invention is carried out directly or by action on their environment, habitat or storage area by means of the normal treatment methods.” (p. 29, ll. 30-31). A person of skill in the art would understand this disclosure to be inclusive of treating the seedbed for culturing the plant body.
Per Assmann, “the substances according to the invention can be employed for protecting plants against attack by the abovementioned pathogens within a certain period of time after the treatment. The period of time within which protection is effected generally extends from 1 to 10 days, preferably 1 to 7 days, after the treatment of the plants with the active compounds.” (p. 26, ll. 16-19).
Assmann discloses treating both soil and a plant body, but does not specifically disclose treating a soil for culturing the plant body with isotianil and at intervals of one more months treating the plant body with isotianil.
However, where the general conditions are disclosed in the art, it would have been obvious to one of skill in the art before the effective filing date of the claimed invention to optimize the schedule of administration with a reasonable expectation of success. The skilled artisan would have been motivated to do so in order to optimize the therapeutic effect, with minimizing the decease burden while maintaining plant health at a safe dose.
Claims 1-3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by CN109068641A to Wetcholowsky et al. (“Wetcholwsky”).
Claim interpretation
Claim 1 recites the limitation “[a] composition for controlling Cercospora leaf spot of beet”. The limitation “for controlling Cercospora leaf spot of beet” is interpreted as an intended use of a composition, which is not given any patentable weight.
Rejection
Wetcholwsky discloses and claims a composition with a combination of: (A) at least one compound selected from following host defense inducers: isotianil, diazosulfide, probenazole and tiadinil, with (B) at least one Fungicidal active compound, be selected from following methoxy acrylate members: trifloxystrobin, dimoxystrobin, fluorine are phonetic Bacterium ester, pyraclostrobin, Enestroburin, ZEN 90160, Fluoxastrobin and Mandestrobin; And (C) another Fungicidal active compound Tebuconazole. This discloses specific additional compounds, per Applicant’s claims 3, in accordance with Applicant’s specification para [0044].
Per Wetcholwsky, composition according to the invention can be used for curatively or prophylactically controlling plant pathogenic fungi or plant or crop Bacterium. Therefore, according to another aspect of the present invention, a kind of plant for curatively or prophylactically controlling plant or crop is provided. The plant that can be protected include Chenopodiaceae (Chenopodiaceae sp.) (such as beet Root). Wetcholwsky further discloses as suitable plants for protection one with resistance to sulfonylureas and/or quinolone, such as soybean, rice, beet, lettuce or sunflower. Applicant can be for part of plant or plant, for example, stem, leaf, Stem tuber, seed, fruit. In the disease of controllable plant or crop by the method for the invention, it can be mentioned that: Particle spot, leaf spot, dirty leaf disease and leaf blight, such as Cercospora (Cerospora) disease, such as caused by beet raw tail spore (Cerospora beticola).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SVETLANA M IVANOVA whose telephone number is (571)270-3277. The examiner can normally be reached 8:30-5:00.
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/SVETLANA M IVANOVA/ Primary Examiner, Art Unit 1627