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 .
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finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 6/18/2026 has been entered.
Status of the Claims
Claims 18-21, 23-26, and 31-36 are currently pending (claim set as filed on 4/20/2026). Claims 1-17, 22, and 27-30 are cancelled. Claims 33-36 are withdrawn from further consideration. Claims 18-21, 23-26, and 31-32 are under examination.
Priority
Applicant is advised of possible benefits under 35 U.S.C. 119(a)-(d) and (f), wherein an application for patent filed in the United States may be entitled to claim priority to an application filed in a foreign country.
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. IN202021035357, filed on 8/17/2020.
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55. Thus the effective filing date of this application is 8/17/2020.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 2/17/2023 was considered, initialed, and attached hereto. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Specification
The use of the trade names or marks used in commerce in the specification of the instant application have been noted in sections:
pg. 17, ¶ 3
pg. 21, ¶ 1
pg. 22, ¶ 4
The terms should be accompanied by the generic terminology; furthermore the terms should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the terms.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Objections
Claim 32 objected to because of the following informalities: the claim recites a list of excipients “at least one of surfactants, binders or binding agents, wetting agent, emulsifiers, disintegrating agents, fillers or carriers or diluents, coating agents, buffers or pH adjusters or neutralizing agents, antifoaming agents or defoamers, penetrants, ultraviolet absorbents, UV ray scattering agents, stabilizers, pigments, colorants, structuring agents, chelating or complexing or sequestering agents, structuring agent, thickeners, suspending agents or suspension aid agents or anticaking agents or anti-settling agents, viscosity modifiers or rheology modifiers, tackifiers, humectants, sticking agents, anti-freezing agent or freeze point depressants, solvents, and mixtures thereof”, but uses “or” to separate alternatives (e.g. “chelating or complexing or sequestering agents”) within the list but also uses commas to separate the listed species. This is grammatically incorrect and appropriate correction is required to separate species by semicolon to distinguish all the listed species from any alternative subspecies in the list.
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 26 and 32 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 26, use of parentheses renders the claim indefinite because it is unclear whether the limitation of “ZC” within the parentheses are part of the claimed invention. Further it is unclear if the feature is a required limitation or merely exemplary. For examination purposes, “ZC” is not interpreted as a required element.
Claim 32 recites a list of agrochemically acceptable excipients: “at least one of surfactants, binders or binding agents, wetting agent, emulsifiers, disintegrating agents, fillers or carriers or diluents, coating agents, buffers or pH adjusters or neutralizing agents, antifoaming agents or defoamers, penetrants, ultraviolet absorbents, UV ray scattering agents, stabilizers, pigments, colorants, structuring agents, chelating or complexing or sequestering agents, structuring agent, thickeners, suspending agents or suspension aid agents or anticaking agents or anti-settling agents, viscosity modifiers or rheology modifiers, tackifiers, humectants, sticking agents, anti-freezing agent or freeze point depressants, solvents, and mixtures thereof”. However it is unclear if the various “or” recited are meant to separate sections of the list of excipients into similar groups to where a single excipient must be selected from each group or if they are simply grammatical errors. For examination purposes, the examiner has chosen to interpret that at least one excipient must be chosen from the entire list available.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 18-21, 26, and 31-32 are rejected under 35 U.S.C. 103 as being unpatentable over Shah (Pre-Grant Publication No. US 2013/0302446 A1 – date of publication 11/14/2013) and further in view of De Saegher (Publication No. W0/2020/104645 – date of publication 5/28/2020).
Shah’s general disclosure relates to a granule pesticidal composition comprising elemental sulfur, a salt compound insecticide, and an agrochemical excipient (see abstract and [0017]).
Regarding claim 18, Shah teaches a pesticide composition comprising elemental sulfur in a range of 20-90% of the total weight (see [0008 and 0015]), which is within the claimed range of 1-95%. The composition further comprises an insecticide salt at a range of 0.1-40% of the total weight (see [0008 and 0015]), which fully encompasses the claimed range of 0.7-40%. Wherein it would be obvious to one of ordinary skill in the art to utilize an amount of insecticide salt within the expressly taught range, including 0.7-40%. The composition also comprises at least one agrochemical excipient (see [0008]). Shah also teaches the composition can be made into granules (see [0017]) wherein the granule particles have a size of less than 50 microns (see [0050]), which fully encompasses the claimed range of 0.1-50 microns. Wherein it would be obvious to one of ordinary skill in the art to utilize an amount of granules within the expressly taught range, including 0.1-50 microns.
However, Shah does not specify that the insecticide salt in the composition was necessarily a choline salt of pelargonic acid.
De Saegher’s general disclosure relates to the use of an environmentally friendly fungicide composition comprising choline salt of a C8-C10 fatty acid, also known as pelargonic acid (see abstract and pg. 5 - “Summary of the Invention” ¶ 1).
Regarding claim 18, De Saegher teaches a pesticide against fungus that comprises a choline salt of pelargonic acid (see pg. 5 - “Summary of the Invention” ¶ 1).
It would have been obvious to one of ordinary skill in the art to add the choline salt of pelargonic acid as taught by De Saegher to the pesticide composition as taught in Shah. One would be motivated to do so because De Saegher teaches the choline salt composition does not have adverse effects on humans and is a more environmentally friendly pesticide (see De Saegher pg. 5 - “Summary of the Invention” ¶ 1). This addition would be an advantage to Shah’s disclosure which states a need for a pesticidal composition that is safe to the user and is less of a burden on the environment (see [0012 and 0156]).
Regarding claim 19, modified-Shah-De Saegher teaches the choline salt of pelargonic acid in the pesticide composition can be formulated as choline pelargonate (see De Saegher pg. 5 - “Summary of the Invention” ¶ 1).
Regarding claim 20, modified-Shah-De Saegher teaches the pesticidal composition can be in liquid, gel, or solid form (see Shah [0016]).
Regarding claim 21, modified-Shah-De Saegher teaches when the pesticidal composition is in solid form it may be formulated as water dispersible granules, broadcast granules, or a wettable powder (see Shah [0016]).
Regarding claim 26, modified-Shah-De Saegher teaches when the pesticidal composition is in liquid form it may be formulated as a suspoemulsion, an oil dispersion, a suspension concentrate, a capsulated suspension, and a seed oil dressing (see Shah [0016]).
Regarding claim 31, modified-Shah-De Saegher teaches the pesticidal composition further comprises an active ingredient of diatomaceous earth algae (see Shah [0046]).
Regarding claim 32, modified-Shah-De Saegher teaches the agrochemical excipient can comprise binders, emulsifiers, diluents, fillers, and wetting agents (see Shah [0042]).
Claims 18-21, 23-26, and 31-32 are rejected under 35 U.S.C. 103 as being unpatentable over Sawant (Publication No. WO 2019/215697 A1 – date of publication 11/14/2019) and further in view of De Saegher (Publication No. W0/2020/104645 – date of publication 5/28/2020).
Sawant’s general disclosure relates to a crop fortification composition comprising elemental sulfur (see abstract) and a pesticidal active ingredient (see pg. 50, ¶ 3).
Regarding claim 18, Sawant teaches a crop fortification composition which comprises elemental sulfur in a range of 1-90% of the total weight (see pg. 7, ¶ 1), which is within the claimed range of 1-95%. The composition further comprises a water soluble salt or derivative or mixture thereof in a range of 0.1-70% of the total weight (see pg. 7, ¶ 1), which fully encompasses the claimed range of 0.7-40%. Wherein it would be obvious to one of ordinary skill in the art to utilize an amount of salt within the expressly taught range, including 0.7-40%. The composition also comprises an agrochemical excipient at a range of 1-98.9% of the total weight (see pg. 7, ¶ 1). Sawant also teaches the composition can be made into granules wherein the granule particles have a size of 0.1-20 microns (see pg. 7, ¶ 1), which fully encompasses the claimed range of 0.1-50 microns. Wherein it would be obvious to one of ordinary skill in the art to utilize an amount of granules within the expressly taught range, including 0.1-50 microns.
However, Sawant does not teach that the water soluble salt in the composition was choline salt of pelargonic acid.
De Saegher’s general disclosure is set forth above.
Regarding claim 18, De Saegher teaches a pesticide against fungus that comprises a choline salt of pelargonic acid (see pg. 5 - “Summary of the Invention” ¶ 1).
It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to add the choline salt of pelargonic acid as taught by De Saegher to the crop fortification composition as taught in Sawant. One would have been motivated to do so because De Saegher teaches the choline salt composition does not have adverse effects on humans and is a more environmentally friendly pesticide (see De Saegher pg. 5 - “Summary of the Invention” ¶ 1). By adding this element, the ordinary artisan would have been able to improve upon Sawant which discloses a need to provide a composition that is highly safe to both the user and the environment (see Sawant pg. 81, ¶ 3).
Regarding claim 19, modified-Sawant-De Saegher teaches the choline salt of pelargonic acid in the pesticide composition can be formulated as choline pelargonate (see De Saegher pg. 5 - “Summary of the Invention” ¶ 1).
Regarding claim 20, modified-Sawant-De Saegher teaches the composition can be in solid or liquid form (see Sawant pg. 14, ¶ 2).
Regarding claim 21, modified-Sawant-De Saegher teaches that when the composition is in solid form it may be formulated as broadcast granules (see Sawant pg. 8, ¶ 4), water dispersible granules, and wettable powders (see Sawant pg. 14, ¶ 2).
Regarding claim 23, modified-Sawant-De Saegher teaches the composition has a dispersibility of at least 40% (see Sawant pg. 46, ¶ 1), which is within the claimed quantity of at least 30%.
Regarding claims 24-25, modified-Sawant-De Saegher teaches the granules in the composition could have a size ranging from 0.1-2.5 mm (see Sawant pg. 53 – “Example 1”), which is within the claimed ranges. As water dispersible granules can be spherical in appearance, this would also read on the “spheronized granules” limitation in claim 24 under broadest reasonable interpretation.
Regarding claim 26, modified-Sawant-De Saegher teaches that when the composition is in liquid form it may be formulated as a suspoemulsion, liquid suspension, suspension concentrate, and seed dressings (see Sawant pg. 14, ¶ 2).
Regarding claim 31, modified-Sawant-De Saegher teaches the composition may further comprise active ingredients such as macronutrients, micronutrients, biostimulants, fertilizers, pesticides, plant growth regulators, microbes, bacteriospores, and mixtures thereof (see Sawant pg. 22, ¶ 3).
Regarding claim 32, modified-Sawant-De Saegher teaches the agrochemical excipient can be surfactants, binders and binding agents, wetting agents, emulsifiers, disintegrating agents, fillers or carriers or diluents, coating agents, buffers or pH adjusters or neutralizing agents, antifoaming agents or defoamers, penetrants, ultraviolet absorbents, UV ray scattering agents, stabilizers, pigments, colorants, structuring agents, chelating or complexing or sequestering agents, thickeners, anti-settling agents, viscosity modifiers, rheological modifiers, tackifiers, suspending agents or suspension aid agents, humectants, antifreezing agent or freeze point depressants, sticking agents, solvents, and mixtures thereof (see Sawant pg. 25, ¶ 2 and pg. 20, ¶ 3).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 18-21, 23-26, and 31-32 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 23-36 of copending Application No. 18/682,831 in view of De Saegher (Publication No. W0/2020/104645 – date of publication 5/28/2020). It is noted that a Notice of Allowance was issued for 18/682,831 on 7/6/2026.
This is a provisional nonstatutory double patenting rejection. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Instant claims are directed towards:
pesticidal composition comprising elemental sulfur, an additional pesticide, and a agrochemical excipient wherein the composition is a particle of a particular size (claims 18-21, 23-26, and 31-32)
wherein the composition is a solid, liquid, or gel (claims 20-21 and 23-26)
wherein the composition further comprises an active ingredient (claim 31)
Copending Application No. 18/682,831 claims are directed towards:
pesticidal composition comprising elemental sulfur, an additional pesticide, and a agrochemical excipient wherein the composition is a particle of a particular size (claims 23-36)
wherein the composition is a solid, liquid, or gel (claims 24-27)
wherein the composition further comprises an active ingredient (claim 29)
Copending Application No. 18/682,831 does not claim:
wherein the additional pesticide was choline salt of pelargonic acid and further is choline pelargonate or acetyl choline pelargonate
De Saegher teaches choline salt of pelargonic acid (see pg. 5 - “Summary of the Invention” ¶ 1).
It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to substitute the choline salt as taught in De Saegher for the fluxapyroxad and prothioconazole as taught in ‘831. One would be motivated to do so because De Saegher teaches that choline salt is used as fungicide in the composition (see De Saegher pg. 5 - “Summary of the Invention” ¶ 1). The disclosure of ‘831 states that fluxapyroxad and prothioconazole are used as fungicides (see ‘831 [0025]), and thus as the additional pesticides have the same purpose in the composition they could be considered functional equivalents and it would only be a matter of simple substitution to replace one with another.
Claims 18-21, 23-26, and 31-32 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 20-30 of copending Application No. 18/689,375 in view of De Saegher (Publication No. W0/2020/104645 – date of publication 5/28/2020).
This is a provisional nonstatutory double patenting rejection. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Instant claims are directed towards:
pesticidal composition comprising elemental sulfur, an additional pesticide, and a agrochemical excipient wherein the composition is a particle of a particular size (claims 18-21, 23-26, and 31-32)
wherein the composition is a solid, liquid, or gel (claims 20-21 and 23-26)
wherein the composition further comprises an active ingredient (claim 31)
Copending Application No. 18/689,375 claims are directed towards:
pesticidal composition comprising elemental sulfur, an additional pesticide, and a agrochemical excipient wherein the composition is a particle of a particular size (claims 20-30)
wherein the composition is a solid, liquid, or gel (claims 22-26)
wherein the composition further comprises an active ingredient (claim 27)
Copending Application No. 18/689,375 does not claim:
wherein the additional pesticide was choline salt of pelargonic acid and further is choline pelargonate or acetyl choline pelargonate
De Saegher teaches choline salt of pelargonic acid (see pg. 5 - “Summary of the Invention” ¶ 1).
It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to substitute the choline salt as taught in De Saegher for the acynonapyr as taught in ‘375. One would be motivated to do so because De Saegher teaches that choline salt is used as fungicide in the composition (see De Saegher pg. 5 - “Summary of the Invention” ¶ 1). The disclosure of ‘375 states that acynonapyr is used as a fungicide (see ‘375 [0014]), and thus as the additional pesticides have the same purpose in the composition they could be considered functional equivalents and it would only be a matter of simple substitution to replace one with another.
Claims 18-21, 23-26, and 31-32 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 12,690,593 in view of De Saegher (Publication No. W0/2020/104645 – date of publication 5/28/2020).
This is a provisional nonstatutory double patenting rejection. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Instant claims are directed towards:
pesticidal composition comprising elemental sulfur, an additional pesticide, and a agrochemical excipient wherein the composition is a particle of a particular size (claims 18-21, 23-26, and 31-32)
wherein the composition is a solid, liquid, or gel (claims 20-21 and 23-26)
wherein the composition further comprises an active ingredient (claim 31)
U.S. Patent No. 12,690,593 claims are directed towards:
pesticidal composition comprising elemental sulfur, an additional pesticide, and a agrochemical excipient wherein the composition is a particle of a particular size (claims 1-12)
wherein the composition is a solid, liquid, or gel (claims 2-6)
wherein the composition further comprises an active ingredient (claim 11)
U.S. Patent No. 12,690,593 does not claim:
wherein the additional pesticide was choline salt of pelargonic acid and further is choline pelargonate or acetyl choline pelargonate
De Saegher teaches choline salt of pelargonic acid (see pg. 5 - “Summary of the Invention” ¶ 1).
It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to substitute the choline salt as taught in De Saegher for the fluensulfone as taught in ‘593. One would be motivated to do so because De Saegher teaches that choline salt is used as a non-phytotoxic pesticide in the composition (see De Saegher pg. 5 - “Summary of the Invention” ¶ 1). The disclosure of ‘593states that fluensulfone is used as a non-phytotoxic pesticide (see ‘593 col. 3, ¶ 1), and thus as the additional pesticides have the same purpose in the composition they could be considered functional equivalents and it would only be a matter of simple substitution to replace one with another.
Claims 18-21, 23-26, and 31-32 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of U.S. Patent No. 12,648,566 in view of De Saegher (Publication No. W0/2020/104645 – date of publication 5/28/2020).
This is a provisional nonstatutory double patenting rejection. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Instant claims are directed towards:
pesticidal composition comprising elemental sulfur, an additional pesticide, and a agrochemical excipient wherein the composition is a particle of a particular size (claims 18-21, 23-26, and 31-32)
wherein the composition is a solid, liquid, or gel (claims 20-21 and 23-26)
U.S. Patent No. 12,648,566 claims are directed towards:
pesticidal composition comprising elemental sulfur, an additional pesticide, and a agrochemical excipient wherein the composition is a particle of a particular size (claims 1-10)
U.S. Patent No. 12,648,566 does not claim:
wherein the additional pesticide was choline salt of pelargonic acid and further is choline pelargonate or acetyl choline pelargonate
De Saegher teaches choline salt of pelargonic acid (see pg. 5 - “Summary of the Invention” ¶ 1).
It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to substitute the choline salt as taught in De Saegher for the azadirachtin as taught in ‘566. One would be motivated to do so because De Saegher teaches that choline salt is used as a pesticide in the composition (see De Saegher pg. 5 - “Summary of the Invention” ¶ 1). The disclosure of ‘566states that azadirachtin is used as a pesticide (see ‘566 col. 2, ¶ 3), and thus as the additional compounds have the same purpose in the composition they could be considered functional equivalents and it would only be a matter of simple substitution to replace one with another.
Claims 18-21, 23-26, and 31-32 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 16-32 of copending Application No. 18/188,849 in view of De Saegher (Publication No. W0/2020/104645 – date of publication 5/28/2020).
This is a provisional nonstatutory double patenting rejection. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Instant claims are directed towards:
pesticidal composition comprising elemental sulfur, an additional pesticide, and a agrochemical excipient wherein the composition is a particle of a particular size (claims 18-21, 23-26, and 31-32)
wherein the composition is a solid, liquid, or gel (claims 20-21 and 23-26)
wherein the composition further comprises an active ingredient (claim 31)
Copending Application No. 18/188,849 claims are directed towards:
pesticidal composition comprising elemental sulfur, an additional pesticide, and a agrochemical excipient wherein the composition is a particle of a particular size (claims 16-32)
wherein the composition is a solid, liquid, or gel (claims 18-22)
wherein the composition further comprises an active ingredient (claim 23)
Copending Application No. 18/188,849 does not claim:
wherein the additional pesticide was choline salt of pelargonic acid and further is choline pelargonate or acetyl choline pelargonate
De Saegher teaches choline salt of pelargonic acid (see pg. 5 - “Summary of the Invention” ¶ 1).
It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to substitute the choline salt as taught in De Saegher for the flupyradifurone as taught in ‘849. One would be motivated to do so because De Saegher teaches that choline salt is used as a non-phytotoxic pesticide in the composition (see De Saegher pg. 5 - “Summary of the Invention” ¶ 1). The disclosure of ‘849 states that flupyradifurone is used as a non-phytotoxic pesticide (see ‘849 [0014]), and thus as the additional pesticides have the same purpose in the composition they could be considered functional equivalents and it would only be a matter of simple substitution to replace one with another.
Response to Arguments
Applicant's arguments filed 4/20/2026 have been fully considered but they are not persuasive.
Applicant’s arguments with respect to claims 18-21, 23-26, and 31-32 have been considered but are moot because the new ground of rejection does not rely on the references Savage and Okafo applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The amendments to the claim set have necessitated the need for new prior art reference Shah in addition to previous prior art references De Saegher and Sawant.
Applicant argues that previous prior art references Sawant and Okafo do not overcome the deficiencies noted with the previous prior art combination of Savage and De Saegher. Although the prior art references used in this office action are a combination of Sawant and De Saegher, which are not addressed in the applicant’s arguments, the reasoning for the argument is not found persuasive regardless.
The applicant argues, citing the attached Rathod declaration, that the prior art references could not have predicted the synergistic effect of the combination of sulfur and choline pelargonate based off the experimental results obtained. However, the reference Savage is not relied upon in this office action and therefore the argument over the experimental data shown in that reference is moot. Further, the references Shah and Sawant used in this office action do not contain the same experimental data as Savage as thus the argument is moot. Regardless, the claims make no mention of a synergistic effect to further limit the invention and thus the argument does not hold weight regardless.
Conclusion
No claims are allowed.
Correspondence Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Emmalee R. Williams whose telephone number is (571)272-5472. The examiner can normally be reached Monday - Friday 7:30 am - 5:00 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sharmila Landau can be reached at (571) 272-0614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/EMMALEE R WILLIAMS/Examiner, Art Unit 1653
/SHARMILA G LANDAU/Supervisory Patent Examiner, Art Unit 1653
Prosecution Insights