DETAILED ACTION
Status of the Application
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1, 44-48, and 50-57 are pending and represent all claims currently under consideration.
Response to Amendment
The amendment filed 12/23/2025 has been entered.
For future reference, claim amendments are required to be made relative to the immediate prior version, and changes not following this rule will be considered non-compliant. See MPEP 714(c)(2).
Claims 1, 44-48, and 50-57 were amended. Claim 49 was canceled. No new material was added.
The amendments have overcome the previous objection of claim 1; the previous rejections under 35 U.S.C. 112(b) of claims 1, 44-46, 50, and 52-56; and the previous rejection of claim 1 due to double patenting.
The objections and rejections of claim 49 are moot, because the claim was canceled.
The previous objections of claims 44 and 46-57 and rejections under 35 U.S.C. 112(b) of claims 47-48, and 51 were modified to address the amendments and maintained.
Claims 1, 44-48, and 50-57 are newly objected to and newly rejected under 35 U.S.C. 112(b) due to the amendments.
The rejections of claims 1, 44-48, and 50-57 under 35 U.S.C. 103 were modified to address the amendments and maintained.
Response to Arguments
Applicant’s arguments, see Remarks (pages 11-15), filed 12/23/2025, with respect to double patenting have been fully considered and are persuasive due to the amendment of the claim. The rejection of claim 1 over the copending application 18/016,701 has been withdrawn.
Applicant’s arguments, see Remarks (pages 15-23), filed 12/23/2025, with respect to the rejection over Gewehr, Rao, and More under 35 U.S.C. 103 have been fully considered and are persuasive due to the amendment of the claims. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Gewehr, Demassey, and More, and as evidenced by PubChem.
Applicant argues that none of the cited references disclose, suggest, or render obvious the use of a plant health additive in combination with two distinct insecticides, nor do they recognize the synergistic biological interactions arising from the claimed ternary composition (Remarks, pages 16-19). This argument is not persuasive, because as stated in the rejection of claim 1 below, Gewehr teaches an insecticide formulation comprising a combination of the three compounds as claimed. Further, while synergistic biological interactions between the compounds is not a limitation of the instant claims, Gewehr teaches the compounds are used in synergistically effective amounts (Gewehr, claim 1).
Applicant argues that Gewehr and More do not teach the specific wall-forming agents as listed in the amended claim (Remarks, page 23). This argument is not persuasive, because as stated in the rejection of claim 57 below, More does teach a specific agent from the claimed list.
Modified/Maintained Claim Objections
Claims 44 and 46-57 are objected to because of the following informalities. Appropriate correction is required.
Regarding claims 44 and 46-57, an article such as “a”, “an”, or “the” should precede each individually listed ingredient (e.g., “wetting agent” should read “a wetting agent”).
Regarding claim 44, each ingredient should be listed as “present in an amount of” rather than the alternatives of “is present in an amount of”, “is present in amount of”, “is selected from”, and “is present in amount of” that are listed later in the claim; “1.0 2.0” should read “1.0-2.0”; “0.1 1.0” should read “0.1-1.0”; and the claim should end in a period.
Regarding claim 54, periods can only be used at the end of a claim. Currently this claim is formatted as two separate sentences. See MPEP § 608.01(m).
Regarding claim 57, “or polymethylene polyphenylisocyanate;” should read “polymethylene polyphenylisocyanate”.
New Claim Objections
Claims 1, 44-48, and 50-57 are objected to because of the following informalities. Appropriate correction is required.
Regarding claims 1, 44-48, and 50-57, “an agrochemical mixtures” should read “an agrochemical mixture”.
Regarding claim 1, “Polyflavonoid)” should read “Polyflavonoid”.
Regarding claim 44, “w/w;,” should read “w/w;”.
Regarding claim 54, “a dispersing agent” should read “the dispersing agent”.
Regarding claim 55, “from group” should read “from a group”.
Modified/Maintained 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 47-48 and 51 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.
Regarding claim 47, the recitation of “a carrier as solvent or a diluting agent which is selected from” is unclear. It is the Examiner’s interpretation that this limitation was meant to be “a carrier comprising a solvent or a diluting agent which is selected from”. The claim further recites the limitation “its alkylated oil”. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 48, the parenthetical recitation of various glycols renders the claims indefinite because it is unclear whether the limitations in parentheses are part of the claimed invention or describing an example or preference. See MPEP § 2173.05(d).
Regarding claim 51, the claim recites the limitation "controlled/slow releasing agent". There is insufficient antecedent basis for this limitation in the claim.
New Claim Rejections - 35 USC § 112
Claims 1, 44-48, and 50-57 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.
Regarding claim 1, the phrase “comprising a diamide broflanilide…” renders the claim indefinite, because it is not clear whether “broflanilide” and the following diamides are meant to be a list of diamides from which the insecticide is selected or if “a diamide” is meant to be an alternative limitation to the specific diamides listed.
Further, the phrase “plant health additives humic acid…” also renders the claim indefinite, because it is not clear whether “humic acid” and the following plant health additives are meant to be a list of plant health additives from which the compound is selected or if “a plant health additive” is meant to be an alternative limitation to the specific plant health additives listed.
Further, “c” contains a list with no conjugation (i.e., and/or) used prior to the final listed insecticide. Therefore, it is unclear whether the group was meant to be closed and if the list is complete.
Further, the phrase “chelated zinc as Zn zinc oxide” renders the claim indefinite, because it is not clear what compound is being claimed.
Regarding claims 44-48 and 50-57, each claim is dependent on the rejected claim 1 and does not cure its deficiencies.
New 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.
Claims 1, 44-48, 50-52, and 54-55 are rejected under 35 U.S.C. 103 as being unpatentable over Gewehr (WO 2015055752 A1), as evidenced by PubChem (Broflanilide). Gewehr was previously cited by the Examiner.
Regarding claim 1, Gewehr teaches a pesticidal (i.e., agrochemical) mixture comprising at least one pesticidal active compound I of formula I:
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(Gewehr, claim 1) in preferably from 1 g to 5 kg per 100 kg (i.e., 0.001-5% by weight; Gewehr, page 55, line 15), overlapping the claimed range of 0.1-40% by weight, which is broflanilide (i.e., an insecticide “a” from the claimed list) as evidenced by PubChem (PubChem, Broflanilide, “1.1 2D structure”); at least one pesticidal active compound II from a group comprising clothiandin (i.e., insecticide “c”; Gewehr, claim 8) in a weight ratio of compound I:II of 500:1 to 1:100 (Gewehr, claim 35), encompassing the claimed range of 0.1-40% by weight; optionally a compound III (Gewehr, page 42, lines 30-32), which can be jasmonic acid (i.e., plant health additives “b” from the claimed list; Gewehr, page 25, lines 7-8), which is admixed in a ratio of active compounds (i.e., compounds I and II):further pesticides (i.e., compound III) of 1:10 to 10:1 (Gewehr, page 46, lines 4-8), encompassing the claimed range of 0.001-20% by weight; and a dispersing agent and an anti-freeze agent (i.e., inactive formulation excipients as listed in the instant claim 44; Gewehr, page 54, line 31). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP §2144.05(I).
Gewehr is considered to be analogous to the claimed invention, because both Gewehr and the instant invention are in the same field of insecticide mixtures. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have arrived at the claimed invention based on the teachings of Gewehr under the meaning of 35 U.S.C. 103.
Regarding claim 44, Gewehr teaches all the elements of the current invention as applied to claim 1. Gewehr further teaches a dispersing agent in 0.5-15% by weight (Gewehr, page 54, line 31), which encompasses the claimed range of 1-6%. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP §2144.05(I).
Regarding claim 45, Gewehr teaches all the elements of the current invention as applied to claim 44. Gewehr teaches the formulation comprises surfactants (Gewehr, page 54, line 30) and teaches block polymers comprising blocks of polyethylene oxide and polypropylene oxide (i.e., ethylene oxide-propylene oxide block copolymers, an emulsifying agent from the claimed list) as suitable surfactants (Gewehr, page 44, lines 23-27).
Regarding claim 46, Gewehr teaches all the elements of the current invention as applied to claim 44. Gewehr teaches the formulation comprises an anti-foam agent (Gewehr, page 54, line 34) and teaches suitable anti-foaming agents are long chain alcohols (i.e., alcohol compounds; Gewehr, page 45, line 3).
Regarding claim 47, Gewehr teaches all the elements of the current invention as applied to claim 44. Gewehr teaches suitable solvents and liquid carriers include vegetable oils (Gewehr, page 43, lines 21-22), and specifically lists neem oil as a known pesticide (Gewehr, claim 1).
Regarding claim 48, Gewehr teaches all the elements of the current invention as applied to claim 44. Gewehr teaches the formulation comprises an anti-freeze agent (Gewehr, page 54, line 31) and teaches suitable anti-freezing agents include urea (Gewehr, page 45, line 1).
Regarding claim 50, Gewehr teaches all the elements of the current invention as applied to claim 44. Gewehr teaches surfactants as wetters (i.e., wetting agents; Gewehr, page 43, lines 35-37), and teaches suitable surfactants include sulfonates, sulfates, or carboxylates (i.e., wetting agents form the claimed list; Gewehr, page 44, lines 1-2).
Regarding claim 51, Gewehr teaches all the elements of the current invention as applied to claim 44. Gewehr teaches the formulation comprises a binder (Gewehr, page 54, line 34) and teaches polyvinyl alcohols (i.e., controlled/slow releasing agents from the claimed list) as suitable binders (Gewehr, page 54, lines 40-41).
Regarding claim 52, Gewehr teaches all the elements of the current invention as applied to claim 44. Gewehr teaches the formulation comprises liquid carriers and teaches fatty acid esters (i.e., an emulsifier from the claimed list) as suitable liquid carriers (Gewehr, page 43, lines 21-25).
Regarding claim 54, Gewehr teaches all the elements of the current invention as applied to claim 44. Gewehr teaches the formulation comprises dispersing agents (Gewehr, page 54, line 31) and teaches the use of fillers such as cellulose and starch (i.e., polysaccharides, dispersing agents from the claimed list; Gewehr, page 43, line 31).
Regarding claim 55, Gewehr teaches all the elements of the current invention as applied to claim 44. Gewehr teaches the composition comprises a buffer (Gewehr, page 46, line 11) and further teaches solvents comprising amines (i.e., amine monomers, a buffering agent from the claimed list; Gewehr, page 43, lines 21-26).
Claim 53 is rejected under 35 U.S.C. 103 as being unpatentable over Gewehr (WO 2015055752 A1) as applied to claims 1, 44-48, 50-52, and 54-55, and further in view of Demassey (US 6013837 A). Gewehr was previously cited by the Examiner.
Regarding claim 53, Gewehr teaches all the elements of the current invention as applied to claim 44. Gewehr teaches the use of adjuvants to improve biological performance (Gewehr, page 44, lines 32-35), and teaches formulations can comprise optional antioxidants and the like (Gewehr, page 54, line 35), but does not specifically mention a stabilizer. Demassey, however, teaches pesticide compositions (Demassey, column 1, lines 6-8) which comprise stabilizing agents selected from a group comprising anti-oxidants and epichlorhydrin (Demassey, column 14, lines 52-59).
Gewehr and Demassey are considered to be analogous to the claimed invention, because all are in the same field of insecticide compositions. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Gewehr to include epichlorhydrin as taught by Demassey, because Demassey teaches antioxidants and epichlorhydrin as reasonable alternatives. Further, Gewehr teaches the use of adjuvants to improve biological performance (Gewehr, page 44, lines 32-35) and Demassey teaches compounds such as epichlorhydrin act as stabilizing agents to prevent chemical degradation.
Claims 56-57 are rejected under 35 U.S.C. 103 as being unpatentable over Gewehr (WO 2015055752 A1) as applied to claims 1, 44-48, 50-52, and 54-55, and further in view of More (WO 2019243927 A1). The references were previously cited by the Examiner.
Regarding claim 56, Gewehr teaches all the elements of the current invention as applied to claim 44. Gewehr teaches the formulation comprises fillers such as silica gels and clays (Gewehr, page 43, lines 29-30), but does not specifically teach a suspending agent from the newly amended claimed list. More, however, teaches an insecticide formulation comprising viscosity modifying agents such as silica and attapulgite clays (i.e., a suspending agent from the claimed list; More, page 25, lines 29-31).
Gewehr and More are considered to be analogous to the claimed invention, because all are in the same field of insecticide compositions. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the formulation of Gewehr to include a specific clay taught by More, because Gewehr both references teach clays as a reasonable substitute for silica, while More teaches a specific type of clay used in the field.
Regarding claim 57, Gewehr teaches all the elements of the current invention as applied to claim 44. Gewehr teaches the formulation can be a capsule (Gewehr, page 43, line 3), but does not specifically list capsule wall forming agents. More, however, teaches an insecticide formulated as a capsule (More, abstract), and teaches wall forming components such as pentamethylene diisocyanate (More, page 12, lines 21-31). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have utilized the method taught by More to form the capsule taught by Gewehr, because Gewehr identifies the need to reduce unfavorable environmental or toxicological effects as a problem in the field (Gewehr, page 1, lines 6-9) and More teaches the use of polymeric shell walls is ideal for a faster release profile and decreased toxicity (More, page 10, lines 15-29).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/C.P.J./Examiner, Art Unit 1613
/JENNIFER A BERRIOS/ Primary Examiner, Art Unit 1613