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 .
Claim 15 is withdrawn.
Claims 1-12, 14, and 16 are pending and represent all claims currently under consideration.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 07/17/2026 has been entered.
Response to Arguments
Applicant's arguments filed 07/17/2026 have been fully considered but they are not persuasive.
Applicant argues that the presence of a polymer P in a specifically claimed amount achieves beneficial effects of stable and homogenous spray liquids compared to formulations free of a polymer P. Applicant further states that the claimed polymer P improves the stability of dispersion concentrates, does not cause a strong increase in viscosity, and shows excellent fungicidal activity which could not have been predicted, citing Tables 1 and 2 of the specification (Remarks, pages 7-8, 11). This argument is not persuasive, because evidence of unexpected properties should be in the form of a direct or indirect comparison of the claimed invention with the closest prior art. See MPEP 716.02(b)(III). Brasher teaches a polymer P as discussed in the rejection below, while the data provided in Tables 1 and 2 cited by the Applicant demonstrates a beneficial effect of the presence of polymer P as compared to compositions comprising no polymer P (comparative examples 11, 13, 15). The data in Table 1 further demonstrates that in the case of DC 8, an amount of 10.0% of a polymeric additive (i.e., the polymer P), which is outside of the claimed range, results in the same homogeneous opaque-clear solution, therefore demonstrating that the specifically claimed amount is not critical to achieve the stated beneficial effect.
Applicant argues that the aqueous suspension of Brasher is different from the dispersible concentrate claimed, and states that the reference does not disclose that the active compound is completely dissolved in a non-aqueous solvent. Applicant states that Brasher’s teaching of a particle size suggests that the pesticide A and polymer P are not completely dissolved (Remarks, pages 9-11). This argument is not persuasive, because Brasher teaches suitable solvents include organic solvents (i.e., a nonaqueous solvent S; Brasher, page 7, paragraph 0102), and teaches the pesticide composition may be present in any form including liquid or dissolved (Brasher, page 8, paragraph 0107), suggesting the active ingredient and polymer would be completely dissolved in the solvent at room temperature (i.e., 20°C) as claimed.
Applicant argues that Brasher does not teach the newly claimed amount of the polymer P, and instead teaches an upper limit of 10 wt% (Remarks, pages 8, 10). This argument is not persuasive, because Brasher teaches that the polymeric additive (i.e., the polymer P) is typically present in an amount of at least 0.5 percent by weight (Brasher, page 6, paragraph 0097), which encompasses the claimed range. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. See MPEP § 2123(II).
Applicant argues that the formulations of Brasher are all aqueous suspensions, and that Brasher does not consider or address stabilizing a freshly precipitated dispersion of pesticide particles from a solution as achieved by the present invention (Remarks, page 10). This argument is not persuasive, because as stated above, Brasher teaches suitable solvents include organic solvents (i.e., a nonaqueous solvent S; Brasher, page 7, paragraph 0102), and teaches the pesticide composition may be present in any form including liquid or dissolved (Brasher, page 8, paragraph 0107). Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. See MPEP § 2123(II). Further, there is no limitation in the current claims regarding the stabilization of a freshly precipitated dispersion of pesticide particles from a solution. Brasher does, however, teach the composition exhibits excellent performance and stability (Brasher, page 1, paragraph 0010).
Modified/Maintained Objection to the Specification
The following guidelines illustrate the preferred layout for the specification of a utility application. These guidelines are suggested for the applicant’s use.
Arrangement of the Specification
As provided in 37 CFR 1.77(b), the specification of a utility application should include the following sections in order. Each of the lettered items should appear in upper case, without underlining or bold type, as a section heading. If no text follows the section heading, the phrase “Not Applicable” should follow the section heading:
(a) TITLE OF THE INVENTION.
(b) CROSS-REFERENCE TO RELATED APPLICATIONS.
(c) STATEMENT REGARDING FEDERALLY SPONSORED RESEARCH OR DEVELOPMENT.
(d) THE NAMES OF THE PARTIES TO A JOINT RESEARCH AGREEMENT.
(e) INCORPORATION-BY-REFERENCE OF MATERIAL SUBMITTED ON A READ-ONLY OPTICAL DISC, AS A TEXT FILE OR AN XML FILE VIA THE PATENT ELECTRONIC SYSTEM.
(f) STATEMENT REGARDING PRIOR DISCLOSURES BY THE INVENTOR OR A JOINT INVENTOR.
(g) BACKGROUND OF THE INVENTION.
(1) Field of the Invention.
(2) Description of Related Art including information disclosed under 37 CFR 1.97 and 1.98.
(h) BRIEF SUMMARY OF THE INVENTION.
(i) BRIEF DESCRIPTION OF THE SEVERAL VIEWS OF THE DRAWING(S).
(j) DETAILED DESCRIPTION OF THE INVENTION.
(k) CLAIM OR CLAIMS (commencing on a separate sheet).
(l) ABSTRACT OF THE DISCLOSURE (commencing on a separate sheet).
(m) SEQUENCE LISTING. (See MPEP § 2422.03 and 37 CFR 1.821 - 1.825). A “Sequence Listing” is required on paper if the application discloses a nucleotide or amino acid sequence as defined in 37 CFR 1.821(a) and if the required “Sequence Listing” is not submitted as an electronic document either on read-only optical disc or as a text file via the patent electronic system.
In the instant case, the specification is missing a cross-reference to related applications section.
New Claim Objections
Claims 14 and 16 are objected to because of the following informalities. Appropriate correction is required.
Regarding claim 14, “wt% at least” should read “wt% of at least”.
Regarding claim 16, a comma should follow “according to claim 1”, and “1,2-butylene glycol)” should read “1,2-butylene glycol”.
Modified/Maintained 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 1-2, 5-12, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Brasher (US 2011218108 A1; IDS reference, 02/03/2023), and as evidenced by PubChem. The references were cited previously by the Examiner.
Regarding claim 1, Brasher teaches a composition comprising an active substance and a polymeric additive (i.e., a polymer P) comprising at least one unit represented by formula I below wherein each R can be a hydrogen atom (i.e., a unit of the claimed formulae I) and at least one unit of formula III which is an alkyleneoxy group which can have 2 carbon atoms (i.e., a unit of the claimed formulae II; Brasher, claim 16), and further teaches when the polymeric additive has at least two units represented by the formula below, each unit may be distributed randomly (i.e., polymer P is a random polymer; Brasher, page 6, paragraph 0086). Brasher teaches Z comprises 10-200 units of formula II below wherein R1 can be a hydrogen atom and R2 can be a C1 hydrocarbon group (i.e., Z is a polymeric group; Brasher, page 5, paragraph 0083) and teaches the composition is prepared with vinyl acetate (i.e., a vinyl monomer which is a vinyl ester as defined by the instant claim 2; Brasher, page 10, paragraph 0134).
Brasher formula (I):
PNG
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113
99
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Greyscale
Brasher formula (II):
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127
89
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Greyscale
Brasher teaches that the polymeric additive (i.e., the polymer P) is typically present in an amount of at least 0.5 percent by weight (Brasher, page 6, paragraph 0097), which encompasses the claimed range. 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). Brasher teaches the active substance is a pesticide (Brasher, claim 22) and the composition can be used for controlling undesired attack by insects (i.e., an agrochemical composition; Brasher, claim 27). Brasher teaches suitable solvents include organic solvents (i.e., a nonaqueous solvent S; Brasher, page 7, paragraph 0102), and teaches the pesticide composition may be present in any form including liquid or dissolved (Brasher, page 8, paragraph 0107), suggesting the active ingredient and polymer would be completely dissolved in the solvent at room temperature (i.e., 20°C) as claimed. Brasher does not teach at least one N-vinyl lactam monomer, which is an optional embodiment, and therefore Brasher teaches the composition as claimed.
Brasher is considered to be analogous to the claimed invention, because both Brasher and the instant invention are in the same field of polymeric pesticide 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 arrived at the claimed invention based on the teachings of Brasher under the meaning of 35 U.S.C. 103.
Regarding claim 2, Brasher teaches all the elements of the current invention as applied to claim 1. As above, Brasher teaches the composition is prepared with vinyl acetate (Brasher, page 10, paragraph 0134).
Regarding claim 5, Brasher teaches all the elements of the current invention as applied to claim 1. Brasher teaches the polymeric additive (i.e., the polymer P) from above, which results in a polyoxyalkylene chain as claimed may be terminated by hydroxy groups (Brasher, page 6, paragraph 0088).
Regarding claim 6, Brasher teaches all the elements of the current invention as applied to claim 1. Brasher teaches the unit represented by formula II above (i.e., Z as claimed) is present in the polymeric additive (i.e., the polymer P) in an amount from 45-75% by weight (Brasher, claim 17).
Regarding claim 7, Brasher teaches all the elements of the current invention as applied to claim 1. Brasher teaches the number of units represented by formula I can be 3 to 10 (Brasher, page 6, paragraph 0085) and the number of units represented by formula III can be 2 to 10 (Brasher, page 6, paragraph 0087), which would result in a combined average number of units I and II as claimed of 5 to 20, overlapping the claimed range. 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 8, Brasher teaches all the elements of the current invention as applied to claim 1. Patentability of apparatus or composition claims depends on the claimed structure, not on the use or purpose of that structure. See MPEP § 2111.02(II). However, Brasher teaches the polymeric additive (i.e., the polymer P) is obtainable by well-known methods for graft polymerization (Brasher, page 6, paragraph 0097), and teaches the mixing of the exact same ingredients in the same amounts as stated in the instant specification (page 21, lines 18-30) to prepare the polymeric additive (i.e., the polymer P) from ingredients comprising vinyl acetate (i.e., a vinyl ester), an alkoxylated C10-alcohol (i.e., an alcohol ethoxylate), suggesting a free radical polymerization is used as claimed. Brasher does not teach an N-vinyl lactam, which is an optional embodiment, and therefore Brasher teaches the composition which would result from the ingredients as claimed.
Regarding claim 9, Brasher teaches all the elements of the current invention as applied to claim 8. Brasher teaches the mixture comprises vinyl acetate (i.e., a vinyl ester) in an amount of 7.75 mol (i.e., 667 g as calculated from a molecular weight of 86.09 g/mol as evidenced by PubChem in a mixture comprising 1350.6 g of total material) or 49% by weight, which lies within the claimed range; an alkoxylated C10-alcohol (i.e., an alcohol alkoxylate) in an amount of 0.23 kg (i.e., 230 g in a mixture comprising 1350.6 g of total material) or 17% by weight, which lies within the claimed range; and does not teach an N-vinyl lactam or an additional comonomer (Brasher, page 10, paragraph 0134), resulting in 0% each of an N-vinyl lactam or an additional comonomer which reads on the composition as claimed.
Regarding claim 10, Brasher teaches all the elements of the current invention as applied to claim 9. Brasher teaches an alkoxylated C10-alcohol (i.e., an alcohol ethoxylate based on a C10 alcohol, which lies within the claimed range; Brasher, page 10, paragraph 0134).
Regarding claim 11, Brasher teaches all the elements of the current invention as applied to claim 1. Brasher teaches the polymeric additive (i.e., the polymer P) from above comprising units of formula I and III (Brasher, claim 16), wherein each unit may be distributed randomly (i.e., polymer P is a random polymer; Brasher, page 6, paragraph 0086), and wherein the polymer may be terminated by hydroxy groups (i.e., X is a hydrogen; Brasher, page 6, paragraph 0088). Brasher teaches the number of units represented by formula I (i.e., n) can be 3 to 10 (Brasher, page 6, paragraph 0085) which lies within the claimed range; and the number of units represented by formula III (i.e., m) can be 2 to 10 (Brasher, page 6, paragraph 0087), which overlaps the claimed range. 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 12, Brasher teaches all the elements of the current invention as applied to claim 1. Brasher teaches the agrochemical composition may be present in any known formulation type including a concentrate (Brasher, page 7, paragraph 0105) and teaches the composition is preferably in a dispersion (i.e., the concentrate is preferably dispersible; Brasher, page 8, paragraph 0107).
Regarding claim 14, Brasher teaches all the elements of the current invention as applied to claim 1. Brasher teaches the polymeric additive (i.e., the polymer P) is present in the composition typically in an amount of at least 0.5 percent by weight (Brasher, page 6, paragraph 0097), which encompasses the claimed range; the active substances are present in an amount of 10-50% by weight (Brasher, page 5, paragraph 0078), which overlaps the claimed range, and teaches the active substance is a pesticide (Brasher, claim 22); the solvent which can be a water-miscible liquid in 40-40% by weight (Brasher, page 7, paragraph 0100), which lies within the claimed range; and additional components in an amount of up to 20% which can include anionic surfactants (Brasher, page 7, paragraph 0099), which lies within the claimed ranges. 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).
Claims 3-4 are rejected under 35 U.S.C. 103 as being unpatentable over Brasher (US 2011218108 A1; IDS reference, 02/03/2023) as applied to claims 1-2, 5-12, and 14, further in view of Dieckmann (WO 2015071139 A1; IDS reference, 02/03/2023). The references were cited previously by the Examiner.
Regarding claim 3, Brasher teaches all the elements of the current invention as applied to claim 1. Brasher teaches a polymeric additive obtainable by well-known methods of graft polymerization (Brasher, page 6, paragraph 0097), but does not teach an N-vinyl lactam. Dieckmann teaches a composition for controlling undesired plant growth (i.e., an agrochemical composition) comprising a pesticide and a graft copolymer comprising monomers of an N-vinyl-lactam and a vinyl ester (Dieckmann, abstract). Dieckmann teaches preferred graft copolymers are obtainable from a mixture comprising N-vinyl pyrrolidone (Dieckmann, page 5, line 17).
Brasher and Dieckmann are considered to be analogous to the claimed invention, because Brasher, Dieckmann, and the instant invention are in the same field of polymeric pesticide 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 Brasher to have included the preferred graft polymer ingredients of Dieckmann to arrive at the claimed invention, because Brasher a polymeric additive obtainable by well-known methods of graft polymerization (Brasher, page 6, paragraph 0097), while Dieckmann teaches N-vinyl lactams to be used in the preparation of graft polymers for agrochemical compositions (Dieckmann, page 2, lines 7-10).
Regarding claim 4, Brasher teaches all the elements of the current invention as applied to claim 1. As above, Brasher teaches a polymeric additive obtainable by well-known methods of graft polymerization (Brasher, page 6, paragraph 0097), but does not teach an N-vinyl lactam. Dieckmann, however, teaches preferred graft copolymers are obtainable from a mixture comprising N-vinyl pyrrolidone (Dieckmann, page 5, line 17) and vinyl acetate (i.e., a vinyl ester), and teaches a weight ratio of the vinyl ester to the N-vinyl lactam of 1:3 to 3:1 as claimed (Dieckmann, claim 11). As above, 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 Brasher to have included the preferred graft polymer ingredients of Dieckmann to arrive at the claimed invention, because Brasher a polymeric additive obtainable by well-known methods of graft polymerization (Brasher, page 6, paragraph 0097), while Dieckmann teaches the claimed ratio to be used in the preparation of graft polymers for agrochemical compositions (Dieckmann, page 2, lines 7-10).
New Claim Rejections - 35 USC § 103
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Brasher (US 2011218108 A1; IDS reference, 02/03/2023), as applied to claims 1-2, 5-12, and 14. The references were cited previously by the Examiner.
Regarding claim 16, Brasher teaches all the elements of the current invention as applied to claim 1. Brasher teaches the organic solvent (i.e., nonaqueous solvent S) can be methanol (Brasher, page 7, paragraph 0102).
Brasher is considered to be analogous to the claimed invention, because both Brasher and the instant invention are in the same field of polymeric pesticide 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 arrived at the claimed invention based on the teachings of Brasher under the meaning of 35 U.S.C. 103.
Conclusion
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/C.P.J./Examiner, Art Unit 1613
/JENNIFER A BERRIOS/ Primary Examiner, Art Unit 1613
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