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 .
Claims 31-54 are pending in the application.
Election/Restrictions
Applicant's election without traverse of Group 1, claims 31-42, drawn to the composition and microorganisms as the additional ingredient in the reply filed on October 1, 2025 is acknowledged. Applicant’s election with traverse wherein substituent R is [(C2H4O)n-R2] as the compound of general formula(I); herbicides as the active ingredient; and microorganisms as the additional ingredient, in the reply filed October 1, 2025 is acknowledged.
The traversal of the species of the compound of formula (I) is on the grounds that the examiner has not provided any evidence regarding anything about the structuration of the molecule’s radical. Applicant traverses, furthermore [(C2H4O)n-R2] classifies the molecule as an oxyethylene group, with different oxyethylene grades (n number) based on the oxyethylene processing at industrial scale. This is not found persuasive because substituent R can be H or the oxyethylene group represented by [(C2H4O)n-R2]. Compounds wherein R is H are different from compounds wherein R is [(C2H4O)n-R2], where at least one R is [(C2H4O)n-R2] . Based on the structural differences, the compounds would have different properties, modes of action and activity and a different field of search.
The traversal of the species of the active ingredient is on the grounds that the Examiner’s interpretation regarding the active ingredient, as the mode of action of the claimed molecule is based on its ability to enhance the hydro-physical properties of various soil types. Applicant argues that the role of the claimed molecule in retaining water in soils and thereby amplifying the effectiveness of soil-applied herbicides, nematicides and fungicides. This is not found persuasive because the role of the claimed molecule, the composition is the intended purpose of the composition. The search of herbicides (claim 34), insecticides (claim 35), fungicides (claim 36), or nematicides (claim 37) would require a different field of search. A herbicide is not in the same class as an insecticide, fungicide, or nematicide. A search for the herbicides claimed would not be the same as a search for the claimed insecticides, fungicides or nematicides.
As such, there is a search and/or examination burden for the patentably distinct species as they would require a different field of search (including searching different classes/subclasses or electronic resources, or employing different search queries) and the prior art applicable to one species would not likely be applicable to another species.
The requirement is still deemed proper and is therefore made FINAL.
Claims 35, 36, 37, 39, 41, and 43-54 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention and non-elected species, there being no allowable generic or linking claim. Elections were made with and without traverse, as indicated hereinabove, in the reply filed on October 1, 2025.
Claims 31-54 are pending in the application. Claims 35, 36, 37, 39, 41, and 43-54 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention and non-elected species, there being no allowable generic or linking claim. Claims 31-34, 38, 40, and 42 will presently be examined to the extent they read on the elected subject matter of record.
Priority
This application is a National Stage Entry of PCT/BR2021/050449 filed October 15, 2021, which claims benefit to Brazil Foreign Application No. BR102021006626-1 filed April 7, 2021 and BR102020021357-1 filed October 19, 2020.
Information Disclosure Statement
Receipt of Information Statements filed May 23, 2023, January 12, 2025, and July 13, 2025 is acknowledged.
Claim Objections
Claim 31 is objected to because of the following informalities: capitalization in the middle of the claim. Lines 31-32 recite “1,2,3-Propanetriol, 1,2,3,4-Butanetetrol, 1,2,3,4,5-Pentanepentol, or 1,2,3,4,5,6-Hexanehexol. Propanetriol, Pentanepentol, and Hexanehexol should not be capitalized. Appropriate correction is required.
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 31-34, 38, 40, and 42 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.
Claim 31, lines 30-31 recite “unmodified polyol is selected from a group comprising: 1,2,3-Propanetriol…or 1,2,3,4,5,6-Hexanehexol”. Claim 31 is rejected for improper Markush language use. The claim uses the transitional phrase “comprising”, open language. Based on the use of the term “comprising”, it indicates that the composition comprises all of the claimed unmodified polyols and other components. However, the use of the phrase “selected from a group” and the conjunction “or” indicates “closed” and alternative language. For the purposes of compact prosecution, the claims will be examined in the alternative for the unmodified polyols. It is suggested that the phrase “consisting essentially of”, closed language, be used. Claims 32-34, 38, 40, and 42 are dependent from claim 31 and are therefore, also rejected.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 31 recites the broad recitation “m is a number ranging from 3 to 6” and “each R is independently H or an oxyethylene group represented by [(C2H4O)n-R2), where at least one R is [(C2H4O)n-R2]”, and the claim also recites “m being 3 or 6 and all R being [(C2H4O)n-R2]” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim 33, lines 4-5 recite “selected from a group comprising herbicides…and nematicides”. Claim 33 is rejected for improper Markush language use. The claim uses the transitional phrase “comprising”, open language. Based on the use of the term “comprising”, it indicates that the composition comprises all of the claimed active ingredients and other components. However, the use of “selected from a group” and the conjunction “and” suggest closed and alternative language for the active ingredient. For the purposes of compact prosecution, the claims will be examined in the alternative. It is suggested that the phrase “consisting essentially of”, closed language, be used. Claims 34, 38, 40, and 42 are dependent from claim 33 and are therefore, also rejected.
Claim 34 recite “aryloxyphenoxypropionates (FOPs)” in line 6. The use of parentheses renders the claims indefinite because it is unclear whether the limitation “FOPs” within the parentheses is part of the claimed invention or is an abbreviation or synonym for aryloxyphenoxypropionates.
Claim 34 recite “cyclohexanediones (DIMs)” in line 8. The use of parentheses renders the claims indefinite because it is unclear whether the limitation “DIMs” within the parentheses is part of the claimed invention or is an abbreviation or synonym for cyclohexanediones.
Claim 34 recite “chloroacetamides (V1)” in line 8. The use of parentheses renders the claims indefinite because it is unclear whether the limitation “V1” within the parentheses is part of the claimed invention or is an abbreviation or synonym for chloroacetamides.
Claim 34 recite “chloroacetamides (V2)” in lines 8 and 9. The use of parentheses renders the claims indefinite because it is unclear whether the limitation “V2” within the parentheses is part of the claimed invention or is an abbreviation or synonym for chloroacetamides.
Claim 34 recite “chloroacetamides (V3)” in line 9. The use of parentheses renders the claims indefinite because it is unclear whether the limitation “V3” within the parentheses is part of the claimed invention or is an abbreviation or synonym for chloroacetamides.
Claim 34 recite “phenylpyrazolines (DENs)” in lines 10 and 11. The use of parentheses renders the claims indefinite because it is unclear whether the limitation “DENs” within the parentheses is part of the claimed invention or is an abbreviation or synonym for phenylpyrazolines.
Correction is required.
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.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 31, 32, 33, 34, and 42 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (WO 2012/151455) as evidenced by Mirajkar et al. (US 5,690,911).
Applicant’s Invention
Applicant claims a composition characterized by comprising a compound of general formula (I) (R1-O-R)m, as claimed, wherein the composition comprises: i) from 8 to 60% by weight of the compound of general formula (I), ii) from 5% to 45% by weight of at least one surfactant, iii) from 0% to 10% by weight of at least one unmodified polyol, and iv) water in q.s. 100% by weight, based on the total weight of the composition, wherein the at least one unmodified polyol is selected from a group comprising: 1,2,3-Propanetriol…or 1,2,3,4,5,6-Hexanehexol.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Zhang et al. teach a high-strength, herbicidal oil-in-water emulsion pre-mix composition comprising a dispersed oil phase containing at least one oil soluble herbicide and a water immiscible organic solvent, a continuous aqueous phase containing a water-soluble salt of glyphosate, and at least two non-ionic EO/PO block copolymer emulsifying surfactant. Zhang et al. teach the composition may include additional active ingredients and inert formulations ingredients (page 3, lines 23-30).
Zhang et al. teach preferred non-ionic EO-PO block copolymer surfactants include Pluronic® F77…F68…F127 (page 7, lines 1-3).
Regarding claim 31, Zhang et al. teach in Table 1 Sample A, Sample C, and Sample E.
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332
510
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Greyscale
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114
500
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Greyscale
In Sample E, Zhang et al. teaches 7.2% Pluronic® F-68, which is a compound of general formula (I), as evidenced by Mirajkar et al. Mirajkar et al. teach that another preferred class of nonionic surfactants include polyoxyethylene polyoxypropylene block copolymers having the formula
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140
428
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(col. 3, lines 27-35); 5.5% Agnique® PG8107-U, which is at least one surfactant; herbicides glyphosate and fluroxypyr-meptyl, and 35% water (pages 11-12, Table 1).
Regarding claim 32, Zhang et al. teach surfactants include alkyl polyglucoside, such as Cognis’ Agnique PG 8107-U (page 8, lines 3-20).
Regarding claims 33 and 34, Zhang et al. teach preferred herbicide active ingredients include benzoic acid herbicides, phenoxyalkanolic acid herbicides, cyclohexanediones (page 4, lines 1-12).
Regarding claims 33 and 34, Zhang et al. teach a water soluble salt of glyphosate (page 6, lines 1-2).
Zhang et al. teach the inert formulations ingredients include adjuvants, antifoam agents, dispersants, spray drift reduction agents, stabilizers and wetting agents (page 7, lines 29-31).
Regarding claim 42, Zhang et al. teach the aqueous herbicidal compositions may optionally be diluted in aqueous spray mixture for agricultural application such as burndown weed control in crop fields prior to planting (page 10, lines 8-10).
Zhang et al. teach the other additional ingredients include one or more other pesticides, and any other additional ingredient providing functional utility (page 10, lines 2-7).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Zhang et al., as evidenced by Mirajkar et al., do not specifically disclose the composition comprises from 8 to 60% by weight of the compound of general formula (I) or the composition comprises an unmodified polyol.
Finding a prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Zhang et al., as evidenced by Mirajkar et al., and use from 8 to 60% by weight of the compound of general formula (I). Zhang et al. teach that for component c) the at least two non-ionic EO/PO block copolymer emulsifying surfactants is from about 1g/L to about 200 g/L, which is equivalent to 0.1% to 20%. One of ordinary skill in the art would have been motivated to use the teachings of Zhang et al. as a guide to experiment and optimize the amount of the compound of non-ionic EO/PO block copolymer to use in the composition. In formulation sample E, Pluronic F-68 LF is 7.2% of the composition. The skilled artisan would have found it obvious to use more of the nonionic EO/PO block copolymer in the composition to formulate an effective herbicidal composition. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references, especially within the broad ranges instantly claimed) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Regarding the limitation of an unmodified polyol, the claims recite the at least one unmodified polyol is 0% to 10% by weight of the composition. 0% by weight indicates that it does not have to be a part of the composition. As such, the compositions taught by Zhang et al., is the claimed composition which does not contain at least one unmodified polyol.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Claims 38 and 40 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (WO 2012/151455) as evidenced by Mirajkar et al. (US 5,690,911)as applied to claims 31, 32, 33, 34, and 42 above, and further in view of Inch et al. (WO 2019/159061).
Applicant’s Invention
Applicant claims a composition characterized by comprising a compound of general formula (I) (R1-O-R)m, as claimed, wherein the composition comprises: i) from 8 to 60% by weight of the compound of general formula (I), ii) from 5% to 45% by weight of at least one surfactant, iii) from 0% to 10% by weight of at least one unmodified polyol, and iv) water in q.s. 100% by weight, based on the total weight of the composition, wherein the at least one unmodified polyol is selected from a group comprising: 1,2,3-Propanetriol…or 1,2,3,4,5,6-Hexanehexol.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
The teachings of Zhang et al., as evidenced by Mirajkar et al., with respect to the 35 U.S.C. 103 rejection is hereby incorporated and are therefore applied in the instant rejection as discussed above.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Zhang et al., as evidenced by Mirajkar et al., do not specifically disclose the one additional ingredient is a microorganisms, as claimed in claim 38 or the specifically claimed microorganisms, as claimed in claim 40. It is for this reason Inch et al. is added as a secondary reference.
Regarding claims 38 and 40, Inch et al. teach a method comprising foliar application of a composition comprising an effective amount of phytoprotective agent to a plant and/or plant part (page 20, claim 1). Inch et al. teach the phytoprotective agent comprises protease derived from a strain selected from Bacillus (such as, Bacillus amyloliquefaciens, Bacillus clausii…and Bacillus pumilus) and Trichoderma reesei (page 20, claim 6).
Finding a prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Zhang et al., as evidenced by Mirajkar et al., and Inch et al. and add an additional ingredient, such as microorganisms to the composition. Zhang et al. teach a high-strength, herbicidal oil-in-water emulsion pre-mix composition comprising a dispersed oil phase containing at least one oil soluble herbicide and a water immiscible organic solvent, a continuous aqueous phase containing a water soluble salt of glyphosate, and at least two non-ionic EO/PO block copolymer emulsifying surfactant. Zhang et al. teach preferred non-ionic EO-PO block copolymer surfactants include Pluronic® F77…F68…F127 (page 7, lines 1-3). Zhang et al. teach the composition may include additional active ingredients and inert formulations ingredients. Because Zhang et al. teach the other additional ingredients include one or more other pesticides, and any other additional ingredient providing functional utility, one of ordinary skill in the art would have been motivated to add a microorganism that provides photoprotection to a plant and or plant part, such as the Bacillus species and Trichoderma species, as taught by Inch et al. As such, the skilled artisan would have been motivated to add a phytoprotective microorganism to the composition with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Claims 31, 33, and 42 are rejected under 35 U.S.C. 103 as being unpatentable over Chen et al. (CN111513063, Translation). Chen et al. cited by Applicant on the IDS filed July 13, 2025.
Applicant’s Invention
Applicant claims a composition characterized by comprising a compound of general formula (I) (R1-O-R)m, as claimed, wherein the composition comprises: i) from 8 to 60% by weight of the compound of general formula (I), ii) from 5% to 45% by weight of at least one surfactant, iii) from 0% to 10% by weight of at least one unmodified polyol, and iv) water in q.s. 100% by weight, based on the total weight of the composition, wherein the at least one unmodified polyol is selected from a group comprising: 1,2,3-Propanetriol…or 1,2,3,4,5,6-Hexanehexol.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Regarding claim 31, Chen et al. teach an insecticide adjuvant, which comprises at least the following components by weight percentage: 30-80% of polyoxyethylene nonionic surfactant, 5-20% of anionic surfactant, 10-20% of humectant, and 100% of water (page 3, paragraph [0008], translation). Chen et al. teach the polyoxyethylene nonionic surfactant includes isooctyl alcohol polyoxyethylene polyoxypropylene ether (page 3, paragraph [0009], translation). Chen et al. further teach the polyoxyethylene ether type nonionic surfactant is a combination of fatty alcohol polyoxyethylene ether and isooctyl alcohol polyoxyethylene polyoxypropylene ether (page 3, paragraph [0010], translation). Chen et al. teach the anionic surfactant is selected from at least one fatty acid salts, sulfonates, sulfates…and phosphate esters (page 3, paragraph [0012], translation). Chen et al. teach the moisturizing agent is selected from propylene glycol and glycerol (page 4, paragraph [0014], translation). Glycerol is 1,2,3-propanetriol.
Regarding claim 31, Chen et al. teach in example 2 an insecticide adjuvant, which includes the following components by weight percentage: 25% fatty alcohol polyoxyethylene ether, 25% isooctylalcohol polyoxyethylene polyoxypropylene ether, 3% sodium fatty acid methyl ester sulfonate, 8% sodium fatty alcohol polyoxyethylene ether sulfate, 14% glycerol (1,2,3-propanetriol), and 100% water (page 14, paragraph [0084], translation).
Chen et al. teach the polyoxyethylene fatty alcohol ether is an ether formed by the ring-opening polymerization of ethylene oxide and fatty alcohol and is represented by the following general formula: RO(CH2CH2O)n H, wherein n is the degree of polymerization (pages 8-9, paragraph [0042], translation).
Regarding claims 33 and 42, Chen et al. teach the use of the insecticide adjuvant in water based pesticides (page 12, paragraph [0071], translation).
Chen et al. teach in a preferred embodiment the insecticide adjuvant comprises at least the following components by weight percentage: 60% polyoxyethylene nonionic surfactant, 10% anionic surfactant, 10% of humectant, and 100% of water (page 7, paragraph [0034], translation).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Chen et al. do not specifically disclose examples wherein the weight percentage of the at least one unmodified polyol is from 0% to 10% by weight.
Finding a prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to use the teachings of Chen et al. and use up to 10% of the unmodified polyol in the insecticide adjuvant. Chen et al. teach an insecticide adjuvant, which comprises at least the following components by weight percentage: 30-80% of polyoxyethylene nonionic surfactant, 5-20% of anionic surfactant, 10-20% of humectant, and 100% of water. Chen et al. teach the polyoxyethylene ether type nonionic surfactant is a combination of fatty alcohol polyoxyethylene ether and isooctyl alcohol polyoxyethylene polyoxypropylene ether. Chen et al. teach the polyoxyethylene fatty alcohol ether is represented by the following general formula: RO(CH2CH2O)n H, wherein n is the degree of polymerization. This formula reads on the general formula (I), currently claimed. Chen et al. further teach one of the preferred humectants is glycerol, which is 1,2,3-propanetriol. Chen et al. teach in a preferred embodiment the humectant is 10% of the composition. One of ordinary skill in the art would have been motivated to use the teachings of Chen et al., experimentation and optimization to determine the amount of humectant, glycerol, in the composition, to form an effective insecticidal adjuvant, with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Conclusion
No claims are allowed.
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/ANDRIAE M HOLT/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614