DETAILED ACTION
Previous Rejections
Applicant’s arguments, filed March 30, 2026, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 Status
Claim 26 is cancelled.
Claims 1, 6, 24, and 25 are examined here-in.
Claim Rejections - 35 USC § 103 (Maintained)
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 non-obviousness.
Claims 1, 6, 24 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Davies (US 2023/0040279 A1, of record) in view of Funke (US 2011/0311503 A1, of record).
Davies teaches pesticidal compositions as acaricides, insecticides, miticides, molluscicides, and nematicides (abstract).
Davies teaches diamide, metadiamide, and isoxazoline compounds including chlorantraniliprole, cyclaniliprole, cyhalodiamide, fipronil, clothianidin, and flupyrimin, among others(¶s 0022, 0062, 0064) for their utility in controlling pests (¶0020). Davies also teaches plant growth regulators including gibberellic acid and triacontanol as pesticidal ingredients (¶s 0020, 0022).
Davies teaches that combinations of pesticidal ingredients can be used in combination in a range of weight ratios, generally in a range from 10:1 to 1:10 of one active ingredient to another (¶s 0142, 0146). Further, Davies teaches the pesticide can be applied in a “pesticidally effective amount”, i.e. the amount needed to achieve an observable effect on a pest, and that with combinations of pesticides, a combination of effects may occur (¶0094).
Davies teaches that pesticide formulations require the addition of other substances to modulate the concentration and form of the composition (¶0152). Davies teaches wetting agents (¶0167), dispersing agents (¶0167), anti-foaming agents (¶0177), preservatives (¶0176), thickening agents (¶s 0156, 0175), disintegration agents (¶0157), solvents (¶s 0154, 0156), and carriers (¶s 0153-0160) as non-pesticidal ingredients. Davies teaches that the non-pesticidal ingredients are important for ease of application, handling, transportation, storage, and maximum pesticidal activity (¶0152). Davies teaches that pesticide formulations can be concentrated emulsions, dusts, emulsifiable concentrates, gels, granules, microencapsulations, seed treatments, suspension concentrates, suspoemulsions, water soluble liquids, water dispersible granules, and wettable powders, among other forms (¶s 0152-0153).
Davies does not teach synergy with pesticide combinations.
Funke teaches the missing element of Davies.
Funke teaches synergistic pesticidal combinations (¶0065). Funke shows synergistic combinations with diamide chlorantraniliprole as well as several different combinations of pesticide groups (¶s 0211, 0434, 0490, 0492, 0498, Tables A, B, C).
Funke teaches pesticidal formulations may be solutions, emulsions, wettable powders, suspensions, granules, suspoemulsion concentrations, or microencapsulations, among other forms (¶ 0458). Funke also teaches the inclusion of solvents, carriers, surfactants, dispersants, tackifiers, and colorants (¶s 0459-0464).
Claims 1, 6, 24, and 25 are prima facie obvious over the combination of Davies and Funke because Funke’s teachings that pesticidal combinations result in synergy (Funke paragraph 0065, 0211, 0434, 0490, 0492, 0498, Tables A, B, C) would motivate a person of ordinary skill in the art to combine various pesticide and growth regulators taught by Davies (Davies paragraphs 0020, 0222). Said differently, a person of ordinary skill in the art would have been motivated to combine various pesticides as suggested by Davies because Funke teaches that combinations of various types of pesticides result in synergy. The combination of Davies and Funke’s teachings is prima facie obvious according to MPEP 2143(I)(g) because Funke’s teachings would motivate a person of ordinary skill to modify the teachings of Davies to arrive at the claimed invention.
Davies’ teaching of a pesticidal combination which may include diamide, metadiamide, and isoxazoline compounds (such as chlorantraniliprole, cyantraniliprole, cyclaniliprole, cyhalodiamide, flubendiamide, tetrachlorantraniliprole, tetraniliprole, broflanilide, fluxametamide, and isocycloseram (¶s 0022, 0028, 0062, 0064, 0248, 0250, 0262, 0269)), plant growth regulators (including paclobutrazol, gibberellic acid, mepiquat, and triacontanol (¶s 0020, 0022, 0144, 0208)) and various other insecticides including thiamethoxam, triflumezopyrim, flupyrimin, fipronil, lambda-cyhalothrin, pymetrozine, clothianidin, diafenthiuron, emamectin benzoate, methoxyfenozide, novaluron, dicloromezotiaz, indoxacarb, spinetoram, tolfenpyrad, flonicamid, afidopyropen, pyriproxyfen, flupyradifuron, spiromesifen, spiropidion, pyrifluquinazon, dimpropyridaz, or spinosad (¶s 0022, 0028, 0029, 0034, 0035, 0037, 0041 - 0044, 0046, 0049, 0052, 0055, 0057 - 0059, 0063, 0252, 0254, 0255, 0257, 0264, 0266, 0277) in a “pesticidally effective amount” (paragraph 0094), along with other substances to modulate the concentration and form of the composition (paragraph 0152) in combination with Funke’s teaching of diamide chlorantraniliprole in synergistic pesticidal combinations (paragraph 0065, Table C) reads on instant claim 1. Funke’s teaching that chlorantraniliprole acts synergistically with other pesticides would motivate a person of ordinary skill in the art to try chlorantraniliprole in various combinations.
Davies’ teachings of combinations in a weight ratio of 10:1 to 1:10 for one active ingredient to another (paragraphs 0142, 0146), reads on the recited amounts of instant claims 1a, 1b, and 1c. For example, a composition with 40% by weight diamide pesticide and 4% by weight plant growth regulator falls within Davies’ taught ratio of 10:1. Similarly, 40% by weight diamide pesticide and 40% by weight of at least one more pesticide falls within Davies taught range of ratios of 10:1 to 1:10. Since the claimed amounts of 1 to 40% by weight for a diamide, metadiamide, or isooxazoline pesticide, 0.001 to 20% by weight for a plant growth regulator, and 0.01 to 40% by weight for at least one more pesticide fall within Davies teachings of combinations in a weight ratio of 10:1 to 1:10 for one active ingredient to another (paragraphs 0142, 0146) the amounts of each recited in instant claim 1 are prima facie obvious. Claimed ranges that overlap with teachings of the prior art are prima facie obvious according to MPEP 2144.05(I).
Davies and Funke’s teachings for the addition of customary formulation adjuvants (Davies paragraph 0152, Funke paragraphs 0461-0464), further reads on instant claim 1d.
Davies and Funke’s teachings of different types of formulations reads on instant claim 6. In detail, Davies teaches granules, suspension concentrates, water dispersible granules (paragraph 0152). Funke teaches possible formulations of suspensions, granules, and suspoemulsion concentrates among others (paragraph 0458).
As discussed above, Davies’ teaching of a pesticidal combination which may include diamide, metadiamide, and isoxazoline compounds including chlorantraniliprole, cyantraniliprole, tetraniliprole, cyclaniliprole, flubendiamide, broflanilide, cyhalodiamide, and isocycloseram (¶s 0022, 0028, 0062, 0064, 0248, 0250, 0262, 0269), reads on instant claim 24. Funke’s teaching that chlorantraniliprole acts synergistically with other pesticides would motivate a person of ordinary skill in the art to use chlorantraniliprole for a synergistic pesticidal combination.
Davies’ teaching for plant growth regulators gibberellic acid and triacontanol (¶s 0020, 0022, 0144, 0208) reads on instant claim 25.
Examiner’s Reply to Attorney Arguments Dated March 30, 2026
Applicant appears to argue the Davies and Funke references individually (Remarks pages 6 – 10), then asserting “even if Davies and Funke were combined, the resulting disclosure would still fail to teach or suggest the presently claimed composition” (Remarks page 10). With regards to Applicant’s arguments against Davies and Funke individually (including Applicant’s argument that “the disclosure in Davies merely provides an extensive listing of potential pesticidal agents and possible formulation ingredients without specifically teaching or suggesting a composition comprising a diamide, metadiamide, or isooxazoline insecticide in combination with a plant growth regulator and at least one additional insecticide” (Remarks page 6), Applicant’s argument that Davies’ disclosure is “merely generic and inclusive in nature, listing numerous unrelated pesticidal classes without identifying any specific combination of actives” (Remarks pages 6 – 7), and Applicant’s argument that Davies only refers to application of pesticidal compositions in a pesticidally effective amount and does not disclose, teach, or suggest the claimed three-component composition or any synergistic interaction between two insecticides and a PGR (Remarks page 7)), as discussed in the previous Action dated December 30, 2025, one cannot show non-obviousness by attacking references individually where the rejections are based on combinations of references. See MPEP 2145(iv). The 35 U.S.C. 103 rejection of claims 1, 6, 24 and 25 is over Davies in view of Funke, therefore one cannot show non-obviousness by attacking references individually.
Applicant argues that the molecule N-(3-chloro-1-(pyridine-3-yl)-1H-pyrazol-4-yl)-2-(methylsulfonyl) propenamide, also known as F1, is an essential part of Davies’ invention, and alleges that “the Examiner’s position would require a person skilled in the art to disregard or remove the essential structural component F1 of Davies’ invention and instead reconstruct an entirely different composition based on unrelated active ingredients” (Remarks page 5). (Although this argument is against the teachings of Davies’ individually, and one cannot show non-obviousness by attacking references individually where the rejections are based on combinations of references according MPEP 2145(iv) the Examiner will address it for the sake of compact prosecution.) While molecule F1 is recited as a part of Davies’ invention, the 35 U.S.C. 103 rejection above does not require the exclusion of said molecule. The Examiner disagrees that molecule F1 is necessarily excluded in Applicant’s claimed compositions because the instant claims include “comprising” language. According to MPEP 2111.03(i), the transitional term “comprising” is inclusive or open-ended and does not exclude additional, unrecited elements. Therefore, as written, independent claim 1 with the language “comprising” does not exclude molecule F1 as taught by Davies. There does not appear to be disclosure in the instant specification of any elements that are required to be excluded. MPEP 2173.05(i) states “Any negative limitation or exclusionary proviso must have basis in the original disclosure,” as such, this argument is unsupported by facts on the record and must be considered attorney argument or opinion. See MPEP 2145(I). Similarly, Applicant argues that Funke requires compounds of formula (I) (Remarks page 9), and as in the case of Davies’ F1, the Examiner disagrees that Funke’s compound of formula (I) is necessarily excluded in Applicant’s claimed compositions because the instant claims include “comprising” language.
Applicant argues “the objectives and teachings of these references are fundamentally different” and alleges that a person of ordinary skill in the art would not be motivated to modify the disclosures of Davies with the teachings of Funke to arrive at the specific composition claimed (Remarks pages 15 – 16). In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, as discussed in the body of the rejection above, a person of ordinary skill in the art would have been motivated to combine various pesticides as suggested by Davies because Funke teaches that combinations of various types of pesticides result in synergy. Funke’s teaching’s that the combination of diamide chlorantraniliprole with several different pesticide groups results in synergy (¶s 0211, 0434, 0490, 0492, 0498, Tables A, B, C) would motivate a person of ordinary skill in the art to combine various pesticides and plant growth regulators as taught by Davies.
Applicant argues impermissible hindsight reconstruction (Remarks pages 14 – 16). In response to Applicant's argument that the Examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). See MPEP 2145(X)(A). For example, Davies teaches each of the pesticides and plant growth regulators of the claims, including chlorantraniliprole, cyantraniliprole, cyclaniliprole, cyhalodiamide, flubendiamide, tetrachlorantraniliprole, tetraniliprole, broflanilide, fluxametamide, and isocycloseram (¶s 0022, 0028, 0062, 0064, 0248, 0250, 0262, 0269), plant growth regulators paclobutrazol, gibberellic acid, mepiquat, and triacontanol (¶s 0020, 0022, 0144, 0208) and various other insecticides including thiamethoxam, triflumezopyrim, flupyrimin, fipronil, lambda-cyhalothrin, pymetrozine, clothianidin, diafenthiuron, emamectin benzoate, methoxyfenozide, novaluron, dicloromezotiaz, indoxacarb, spinetoram, tolfenpyrad, flonicamid, afidopyropen, pyriproxyfen, flupyradifuron, spiromesifen, spiropidion, pyrifluquinazon, dimpropyridaz, or spinosad (¶s 0022, 0028, 0029, 0034, 0035, 0037, 0041 - 0044, 0046, 0049, 0052, 0055, 0057 - 0059, 0063, 0252, 0254, 0255, 0257, 0264, 0266, 0277). A person of ordinary skill in the art would be motivated to combine diamide chlorantraniliprole with different plant growth regulators and pesticides because Funke teaches chlorantraniliprole combinations results in synergy (¶s 0211, 0434, 0490, 0492, 0498, Tables A, B, C).
Applicant argues that the combination of Davies and Funke does not disclose or suggest: i. a composition containing two insecticide and a plant growth regulator; ii. Specific, enabling formulation ranges for such a three-component mixture; or iii. The use of specific adjuvants and formulation aids (Remarks page 11). The Examiner disagrees because, as noted in the previous action and in the body of the rejection above, Davies and Funke both teach plant growth regulators for inclusion in pesticidal compositions (Davies paragraphs 0020, 0022, Funke paragraphs 0466-0467). As previously discussed, a person of ordinary skill in the art would have been motivated to combine pesticides and plant growth regulators as suggested by Davies because Funke teaches that combinations of various types of pesticides result in synergy (Funke paragraphs 0065, 0211, 0434, 0490, 0492, 0498, Tables A, B, C). Furthermore, with regards to formulation ranges, Davies’ teachings of combinations in a weight ratio of 10:1 to 1:10 for one active ingredient to another (paragraphs 0142, 0146), reads on the recited amounts of instant claims 1a, 1b, and 1c. For example, a composition with 40% by weight diamide pesticide and 4% by weight plant growth regulator falls within Davies’ taught ratio of 10:1. Similarly, 40% by weight diamide pesticide and 40% by weight of at least one more pesticide falls within Davies taught range of ratios of 10:1 to 1:10. Since the claimed amounts of 1 to 40% by weight for a diamide, metadiamide, or isooxazoline pesticide, 0.001 to 20% by weight for a plant growth regulator, and 0.01 to 40% by weight for at least one more pesticide fall within Davies teachings of combinations in a weight ratio of 10:1 to 1:10 for one active ingredient to another (paragraphs 0142, 0146) the amounts of each recited in instant claim 1 are prima facie obvious. Claimed ranges that overlap with teachings of the prior art are prima facie obvious according to MPEP 2144.05(I).
Applicant argues that the combination of Davies and Funke does not disclose or suggest a synergistic effect from the claimed combination (Remarks page 11). The Examiner disagrees because Funke teaches synergistic pesticidal combinations (¶0065). Funke shows synergistic combinations with diamide chlorantraniliprole as well as several different combinations of pesticide groups (¶s 0211, 0434, 0490, 0492, 0498, Tables A, B, C). Funke’s teaching that chlorantraniliprole acts synergistically with other pesticides would motivate a person of ordinary skill in the art to use chlorantraniliprole for a synergistic pesticidal combination.
Applicant alleges “the present invention demonstrates unexpected synergy from the specific combination of two insecticides and a PGR, leading to improved insect and pest control with enhanced plant health” (Remarks page 11). As an initial matter, the Examiner notes that a proper side-by-side comparison to the closest prior art as required by MPEP 716.02(e) does not appear to have been made. Applicant alleges unexpected results, however does not provide a comparison with the closest prior art. As discussed in the body of the rejection above, Funke teaches that chlorantraniliprole in combination with other pesticides, shows synergy ((¶s 0211, 0434, 0490, 0492, 0498, Tables A, B, C), thus a person of ordinary skill in the art would expect a combination of chlorantraniliprole to have synergistic activity. Applicant has not explained the how the synergism observed in the instant application differs from the synergism shown by Funke. As such, it is not clear the significance of data in arriving at the conclusion that results are unexpected as required by MPEP 716.01(c)(II) and 716.02(b)(II) and accordingly how Applicant’s argument is supported by the proffered evidence.
Finally, and purely arguendo, even if Applicant has in fact shown unexpected results (of which the Examiner is not persuaded at this time), the Examiner notes that Applicant’s specification shows 12 treatment combinations that have synergistic efficacy against pests (Table 2), which does not appear to be “reasonably representative” of the claims in their current scope. See MPEP 716.02(d). The Applicant has allegedly demonstrated synergistic pesticidal activity for 12 combinations of two pesticides and one plant growth regulator (specification Table 2), however if this is in fact true it would only have been shown for twelve specific combinations of two pesticides and a plant growth regulator. It is unclear that a composition containing the specific combination of two pesticides and a plant growth regulator would be reasonably representative of compositions containing other combinations of two pesticides and a plant growth regulator in varying amounts, thereby falling within the broader scope of what is presently claimed.
For more information regarding unexpected results arguments, including key indicia for establishing persuasive unexpected results, the Examiner recommends MPEP 2145 and 716.02.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Toriana N. Vigil whose telephone number is (571)270-7549. The examiner can normally be reached Monday - Friday 9:00 a.m. - 5:00 p.m. EST.
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/TORIANA N. VIGIL/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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