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
Previous Rejections
Applicants' arguments, filed 03/01/26 have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
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 20, 22 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Saalfeld et al. (US PG Pub. 2013/0195997A1) in view of Van (EP 0608944A1, presented in IDS) and further in view Ben Yehuda et al. (US PG Pub. 2019/0174802A1), Nave et al. (WO 2019/012380A1) and Molloy et al. (WO 2013/073959A1 of record).
Saalfeld et al. discloses fungicidal mixtures, see title. Saalfeld teaches one or more of fungicide can be used in the composition such as imazalil (an azole-based fungicide), epoxiconazole, etaconazole, see claim 3. Saalfeld teaches use of propionic acid, lactic acid and citric acid, see claim 10 and [0158]. The amount of one of the fungicides ranges from 0.0001% to 90% by weight, see [0101]. Fungicide used is in agricultural field, see [0001] and [0002]. Saalfeld et al. teaches use of wetting agents, emulsifiers, dispersants, stabilizers, fragrances, copper, iron, cobalt, organic solvents, buffer and water, see pages 4-5, thus reading on carriers.
Saalfeld also does not teach the specific amount of the acids.
Saalfeld does not teach use of an oxidizing agent or the kit as claimed.
Van teaches an antifungal composition which comprises an antifungal agent of the polyene type, an acidic antifungal compound and an additional organic acid or its alkali or earth alkali salt. The use of this composition to treat food and agricultural products is disclosed, see abstract. Van discloses compositions comprising antifungal compounds and acids, see claims 1-4, see also the specific compositions of examples 1, 2, 3, and 3a. It is specified on page 3, lines 10-13 that "the combined action towards mould of a polyene antifungal agent and an acidic antifungal compound is markedly enhanced when at least one further acid is added". According to claim 4 of Van, the acid may be citric acid, acetic acid, hydrochloric acid, tartaric acid, fumaric acid, ascorbic acid, lactic acid, sorbic acid, propionic acid. It is also specified on page 4, lines 3-5 that the acid may be hydrochloric acid, phosphoric acid, sulfuric acid. As taught in page 3, lines 30-32, the compositions of Van comprise from 0.01% to 1% by weight antifungal agent, from 0.05% to 5% by weight acidic antifungal compound and from 0.05% to 5% by weight additional acidic compound, which, converted in ppm amounts to 600 to 60000 ppm of fungicide and 500 to 50000 ppm of acid. The ratio acid component to fungicide is thus between 0.008:1 and 1:83.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have utilized propionic, lactic and citric acid along with imazalil (an azole-based fungicide) or epoxiconazole, etaconazole, of Saalfeld et al. One of ordinary skill would have been motivated to do so because Saalfeld teaches fungicidal composition for agricultural products and Van also teaches use of propionic acid, lactic acid and citric acid comprising compositions for fungicidal purposes to treat food and agricultural products. The expected product or composition will be expected to have added fungicidal effect.
Saalfeld does not teach use of an oxidizing agent or the kit as claimed.
Ben Yehuda et al. discloses treating edible matter comprising applying a composition comprising performic acid (percarboxylic acid, reading on the claimed oxidizing agent) to the edible matter, see abstract. Ben Yehuda teaches use of various carboxylic acids including propionic, lactic and citric acid, see claims 66 and 68 and [0015]. The method comprises applying the composition to be effective as fungicide, see claim 133 and [0027]. The oxidizing agent can be hydrogen peroxide and the range of performic acid ranges from 1ppb to 50 wt. %, see [0015]. The concentration of performic acid decreases not more than 1% over 6 months at a temperature of 20 degrees Celsius, see [0015].
It would have been obvious to one of ordinary skill in the art to have combined the oxidizing agent such as performic acid and/or hydrogen peroxide into the fungicidal composition of Saalfeld et al. as modified by Van et al. One of ordinary skill would have been motivated to do so because the desired effect of Saalfeld et al. is to make a fungicidal composition used for agricultural products and purposes and Ben Yehuda teaches oxidizing agents such as hydrogen peroxide and performic acids (percarboxylic acid) help in having fungicidal effect in treating edible matter and is stable as discussed above.
The references discussed above do not teach use of a kit comprising a first compartment comprising an acid and a fungicide and second compartment comprising an oxidizing agent.
Nave et al. method of controlling harmful fungi and for increasing health of a plant, see abstract. Nave teaches active compound as citric acid addition salt of 3,4-dimethyl pyrazole, see claim 1, part c. Nave teaches lactic acid addition salt of 3,4-dimethyl pyrazole, see claim 1, subsection d). Nave teaches use of several azole -based compounds including imazalil, an azole based fungicide on page 8, line 19.
Nave teaches on page 11, lines 9-15 the following that the mixture of the present invention also includes kit-of-parts inhibitor (compound I) and a fungicide (compound II). Here, the term "kit-of-parts is understood to denote a kit comprising at least two separate parts wherein each be independently removed from the kit. A kit includes a box, a tool, a vessel, or any kit-like equipment. Also, a kit whose separate parts are only together in this one kit for an extremely short period of time are regarded as kit-of-parts. Kit-of-parts are combined application (of the contents) of the separate parts of the kit to the invention such as parts of a kit or parts of a binary or ternary appropriate. When living microorganisms form part of such kit, it must be and amounts of the other parts of the kit (e.g. chemical pesticidal agents). Consequently, one embodiment of the invention is a kit for preparing a usable composition, the kit comprising a) a composition comprising compound I as in further specific embodiments, the mixture or composition or kit-of-parts invention may additionally comprise a fertilizer. In case the mixture or kit-such as parts of a kit or parts of the mixture may be mixed by the user. (Thus, the reference teaches a kit which can comprise various parts or compartments as claimed).
Molloy teaches synergistic fungicidal composition, see title. The reference teaches use of a kit with separate compartments or containers for providing the fungicides as discussed below: the invention includes within its scope a kit of parts, the kit of parts providing for an improved fungicidal composition comprising components (A) fludioxonil and (B) fluazinam to achieve synergistic ratios of from about 5:1 to 1 :5 and optionally (C) one or more biocides in separate containers or, as separate compartments, within the same container, see before claims, under kits of parts.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have utilized a kit comprising first compartment and second compartment, wherein an azole-fungicide is included along with propionic acid, lactic acid and citric acid in first compartment and oxidizing agent hydrogen peroxide/performic acid in the second compartment based on the guidance and teachings of Nave et al. and Molly et al. as discussed above teaching that kits comprising different parts wherein fungicides are enclosed and Molly further teaches kit of parts providing for an improved fungicidal composition comprising components (A) fludioxonil and (B) fluazinam to achieve synergistic ratios of from about 5:1 to 1 :5 and optionally (C) one or more biocides in separate containers or, as separate compartments, within the same container. Having instructions for the kit would be obvious to one of ordinary skill in the art for the consumer and user to use the fungicidal mixture or composition enclosed in the kit. It would have been further obvious to one of ordinary skill to have utilized the guidance provided by Saalfeld et al., Van et al., Ben Yehuda et al., Nave et al. and Molly et al. teaching various fungicidal compositions as to how to dilute to make it applicable for fungicidal effects because the desired effect all the references is to disinfect or to make the composition help in having antifungal effect and the compositions of Van et al. teach the generic amount by teaching that the composition comprises from 0.01% to 1% by weight antifungal agent, from 0.05% to 5% by weight acidic antifungal compound and from 0.05% to 5% by weight additional acidic compound, which, converted in ppm amounts to 600 to 60000 ppm of fungicide and 500 to 50000 ppm of acid and Saalfeld et al. teach that the amount of one of the fungicides ranges from 0.0001% to 90% by weight, see [0101] and Ben Yehuda teaches use of oxidizing agents such as performic acid and hydrogen peroxide on edible food which would effect fungicidal benefits and make it more stable.
The property of the composition to be stable for 6 months will be implicit because the references make obvious the claimed composition and property cannot be separated from the chemistry of the composition. Additionally, Ben Yehuda teaches that the composition with oxidizing agent remains stable for 6 months. Regarding the limitation, wherein said kit comprises instructions for mixing said first compartment and said second compartment, thereby obtaining a composition comprising a reduced fungicidally effective amount of said fungicide, and wherein said reduced fungicidally effective amount is lower by at least 10%, compared to a similar composition without the acid component, since the prior art makes the claimed components in a kit obvious, it would appear reasonable to conclude that the property would necessarily be present.
Applicant argues that Saalfeld does not teach the claimed azo-based fungicide and the claimed acids, propionic, lactic and citric acid. According to Applicant, Van is solely directed to "polyene antifungal agent", i.e. a cyclic ring containing multiple conjugated double bonds such as nystatin or amphotericin B, which is not the azole/diazine-based fungicide. Further, Van is directed to both weak and strong acids (e.g. hydrochloric, phosphoric, sulfuric as well as citric and acetic acids) and is completely silent about the specific combination of 3 weak carboxylic acids, as instantly claimed. Accordingly, a skilled artisan would not consider combining the teachings of Van and Saalfeld, since both references are directed to structurally distinct fungicides. Moreover, such potential combination would be still deficient with respect to specific fungicides, specific combination of 3 weak acids and oxidizing agent, as recited by claim 20. Nave is solely teaching specific acid salts of active agents and is clearly silent regarding a combination of 3 specific acids, as instantly claimed. An acid and an acid salt is not the same compound. Molloy is solely directed to a synergistic combination of fludioxonil and fluazinam (which is considered arylaminopyridine and is neither diazine nor azole- based fungicide). Molloy is completely silent regarding instantly claimed combination of a specific fungicide with 3 specific acids and an oxidizer, as recited by instant claim 20. The references also do not teach the oxidizing agent as the sole active ingredient.
These arguments are not persuasive. As discussed in the rejections above, Saalfeld is cited for the teachings of using the three claimed acids along with other acids contributing towards fungicidal effect as Saalfeld teaches one or more of fungicide can be used in the composition such as imazalil (an azole-based fungicide), epoxiconazole, etaconazole and also propionic, lactic and citric acid for fungicidal effect. Van while teaching a fungicidal composition provides use of the same acids as taught by Saalfeld et al. for fungicidal effect. While the fungicide taught by Van is different, Van was cited mainly for the amount used for fungicidal effect known in the art. Van et al. teach the generic amount by teaching that the composition comprises from 0.01% to 1% by weight antifungal agent, from 0.05% to 5% by weight acidic antifungal compound and from 0.05% to 5% by weight additional acidic compound, which, converted in ppm amounts to 600 to 60000 ppm of fungicide and 500 to 50000 ppm of acid and Additionally, as discussed above Ben Yehuda teaches use of citric acid, propionic acid and lactic acid along with oxidizing agent which would act fungicidal in nature. Therefore, selection of the specific acids, oxidizing agents and fungicidal compound would have been obvious to one of ordinary skill based on the guidance and teachings provided by the refences discussed above.
Applicant further argues that the instant application demonstrates unexpected synergistic effect of a composition containing the instantly claimed carboxylic acids, the oxidizer (e.g. peracetic acid) and an azole or diazine-based fungicide (e.g. imazalil or fludioxonil), which is reflected by a drastically reduced effective dose of the fungicide (as pointed out by instant claim reciting "fungicidally effective amount of said fungicide of between 50 and 500 ppm").
These arguments are fully considered but is not persuasive. The fungicidal effect is taught by the references as discussed above. No comparative experiments have been presented, and it is unclear whether there is any difference between the inventive formulation and the known fungicidal effect taught by the prior art. And the tests used in a comparison must be made under identical conditions except for the novel features of the invention. See MPEP 716.02(e). Since such a comparison has not been presented, the arguments are not persuasive.
Correspondence
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/SNIGDHA MAEWALL/Primary Examiner, Art Unit 1612