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 .
Election/Restrictions
Applicant’s election of Group I (claims 1, 3-4, 6-7, 9-11, 13, and 19-20) in the reply filed on 10/27/2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Accordingly, claims 21-24, 26-28, and 30 are withdrawn as being directed to a non-elected invention. Claims 1, 3-4, 6-7, 9-11, 13, 19-20, 23-24, 26, 28, and 30 are amended and claims 2, 5, 8, 12, 14-18, 25, 29, and 31 are canceled. Claims 1, 3-4, 6-7, 9-11, 13, and 19-20 are examined on the merits herein.
Priority
The instant application filed 05/16/2023, is a 371 filing of PCT/IL2021/051379, filed 11/18/2021, which claims priority to Provisional Applications Nos. 63/222,063, filed 07/15/2021, and 63/115,274, filed 11/18/2020.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 05/24/2024, 04/01/2025, and 10/28/2025 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Claim Rejections - 35 USC § 112(b)
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 13, 19 and 20 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.
Claims 13, 19, and 20 recite “a w/w concentration of (i) said sulfide compound a, and (ii) of said surfactant within said composition” without specifying what this w/w concentration is based on. Is it based on the weight of the total composition or of the solvent alone? For the sake of compact prosecution it will be interpreted as being based on the total weight of the composition.
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.
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, 3-4, 6-7, 9-11, 13, and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Liu, Y. (CN 104365600 B, translation used, 09/14/2016, on record), hereinafter Liu, in view of Rochling, A., et al. (US 6602823 B1, 08/05/2003, PTO-892), hereinafter Rochling.
Liu discloses a dimethyl disulfide oil, preparation methods thereof and water emulsions and capsules (title). The preparation provides dimethyl disulfide, which is not easily dissolved in water, in a stable miscible oil (abstract; p. 2, para, 4). The invention relates to agricultural chemicals (p. 1, technology field) and is used for preventing soil nematode and soil-borne pathogenic epiphyte, weed and underground pests (abstract).
Regarding claim 1, Liu teaches a composition comprising a sulfide compound and an emulsifier (i.e., a surfactant) (abstract; Examples), as instantly claimed. The sulfide compound is dimethyl disulfide which reads on an alkyl sulfide as instantly claimed in (iii). The emulsifier is a EO/PO block copolymer (p. 4, para. 5; Ex. 4-5). The miscible oil comprises 70-90% of dimethyl disulfide, 10-12% of emulsifier, and 0 to 18% of organic solvent (p. 2, para. 7). Examples 4 and 5 teach a composition comprising 70 or 80 grams of dimethyl disulfide, respectively, and 10g of EO/PO block copolymer Pluronic PE 6100. The ratio of the sulfide to the surfactant (i.e., EO/PO block copolymer) is 8:1 in Example 4 and 7:1 in Example 5, both of which fall within the instantly claimed range of (i) (i.e., 20:1 – 1:2). Such examples are substantially devoid of an alkyl amine surfactant as instantly recited in (ii).
Liu further teaches an aqueous emulsion, obtained by adding and dispersing the dimethyl disulfide miscible oil above in water (p. 3, para. 1; claim 8). After mixing with water, it may be applied by a water pump via irrigation method (p. 7, para. 11). Liu teaches diluting the examples 200 times with standard hard water and performing emulsion stability tests (p. 7, para. 3). Examples 3-6 which provide a high content of the dimethyl disulfide in the initial miscible oil, show no breaking, floating, or precipitation, with good cold and heat storage stability (p. 7, para. 8).
Regarding claims 7, 9, and 10: The dimethyl disulfide of Liu comprises two sulfurs bonded together with a methyl group (i.e., C1 alkyl) group bonded to each sulfur, thereby reading on the instantly defined sulfide compound.
Regarding claim 11: Examples 4 and 5 teach butyl cellosolveTM as the organic solvent. Such a solvent reads on an agriculturally acceptable carrier. It is noted that the agriculturally acceptable salt is optional as instantly defined.
Regarding claim 13: As discussed above, Liu teaches a miscible oil comprising an organic solvent which is dispersed in water to form an aqueous emulsion. Thus, Liu teaches both an aqueous solvent (i.e., water) and an organic water miscible solvent.
Regarding the concentration of the sulfide and surfactant as recited in claims 13, 19, and 20: Liu teaches diluting the miscible oils of the Examples 200 times with water. In example 4, which has a starting concentration of 70 g dimethyl disulfide and 10 g of EO/PO block copolymer in a total of 100 g solution, diluting 200 times would result in a final concentration of 0.4% w/w of the sulfide and surfactant (i.e., 80÷200). In example 5, which has a starting concentration of 80 g dimethyl disulfide and 10 g of EO/PO block copolymer in a total of 100 g solution, diluting 200 times would result in a final concentration of 0.45% w/w of the sulfide and surfactant (i.e., 90÷200). Both concentrations fall within the range of claims 13 and 20 (i.e., 0.1 – 10%). Furthermore, Liu teaches that the composition is used in irrigation methods as defined in claim 20. Regarding the concentration of the sulfide and surfactant “sufficient for inducing bud break in a plant”, as recited in claim 19, the instant specification defines a synergistically effective amount as a w/w concentration of (i) the sulfide compound, and (ii) of the surfactant of between 0.1 and 10% ([0025]), wherein the synergistically effective amount is sufficient for inducing bud break in a plant ([0029]). As such, the diluted composition of Liu, which falls within this range, comprises a sufficient concentration for inducing bud break in a plant as evidenced by the instant specification.
The teachings of Liu differ from that of the instant invention in that Liu does not explicitly teach an alkylated poly(ethylene glycol-co-propylene glycol) as recited in claim 1, and further defined in claims 3-4 and 6.
Rochling discloses agrochemical formulations comprising at least one agrochemically active compound, a 2-ethyl-hexanol alkoxylate, and optionally additives (abstract). The 2-ethyl-hexanol alkoxylate has the following formula:
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2
52
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, in which P represents:
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2
52
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and E represents:
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2
52
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, and the numbers 8 and 6 are average values (abstract; claim 1). Such a structure reads on the alkylated poly(ethylene glycol-co-propylene glycol) of claims 1, 3-4, and 6.
It is known that mixtures of fatty alcohol ethoxylates and propoxylates and their copolymers can be employed as low-foam wetting agents for formulating active compounds in crop protection (col. 1, lines 31-35). Specifically, the formulations of Rochling, which comprise the above copolymer, have several advantages. For instance, when mixing the formulations of Rochling with water, only very little foam is formed. Furthermore, the formulations have a favorable effect on the biological activity of the active components they comprise and sparingly water-soluble active compounds show a reduced tendency to crystallize on dilution with water (col. 2, lines 29-38).
The agrochemically active compounds are any substance which are customary for the treatment of plants such as fungicides, bactericides, insecticides, acaricides, nematicides, herbicides, plant growth regulators, plant nutrients and repellents (col. 2, lines 39-45).
The agrochemical formulations of Rochling are highly suitable for applying the active compounds they comprise to plants and/or their habitat (col. 2, lines 16-19). The agrochemical formulations can be applied in the forms which are customary for liquid preparations, either as such or after prior dilution with water, i.e., for example, as emulsions, suspensions or solutions. The application is carried out by customary methods, for example, by spraying, watering or injecting (col. 7, lines 47-53).
It would have been prima facie obvious to one of ordinary skill in the art, prior to the effective filing date of the claimed invention, to incorporate the 2-ethyl-hexanol alkoxylate of Rochling into the composition of Liu to yield the instantly claimed invention since the 2-ethyl-hexanol alkoxylate of Rochling is a routine and known EO/PO block copolymer in the art. It would have been prima facie obvious to substitute the EO/PO block copolymer of Liu with the 2-ethyl-hexanol alkoxylate of Rochling, which is also an EO/PO block copolymer, to predictably generate the instantly claimed composition. One of ordinary skill in the art would have been motivated to do so since the 2-ethyl-hexanol alkoxylate of Rochling provides an agrochemical composition with various advantages such as reduced foaming when mixed with water, favorable biological activity of the active, and reduced crystallization of sparingly water-soluble actives when diluted in water. Such advantages would have been desirable in the agrochemical composition of Liu given that it is dispersed in water prior to application and comprises a sparingly water-soluble active (i.e., dimethyl disulfide).
One of ordinary skill in the art would have had a reasonable expectation of success in making the above modifications since both Liu and Rochling teach compositions for forming aqueous emulsions, wherein the composition comprises an agrochemical active and an EO/PO block copolymer.
As such the composition of claims 1, 3-4, and 6 are obvious.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUSANNAH S ARMSTRONG whose telephone number is (571)272-0112. The examiner can normally be reached Mon-Fri 7:30-5 (Flex).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue X Liu can be reached at (571)272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SUSANNAH S ARMSTRONG/Examiner, Art Unit 1616
/ERIN E HIRT/Primary Examiner, Art Unit 1616