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 Claims 1-17 are pending; claims 1-5 and 7-14 are examined, claims 6 and 15-17 are withdrawn from further consideration as being drawn to a nonelected invention/species.
Applicant’s arguments, filed 09 April 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
Response to Arguments
Applicant mainly asserts on p. 7 of the Remarks submitted 09 April 2026 that the composition of the alleged carrier matrix in Avgousti does not align with Applicant’s definition of surfactant since it includes a polymeric surfactant in addition to a nonionic surfactant, and Applicant’s Specification defines “surfactant” as comprising anionic, cationic, non-ionic and/or amphoteric surfactant(s) and does not appear to include a polymeric surfactant. Applicant further asserts Avgousti does not disclose the ratio of the surfactant : binder as instantly claimed.
The Examiner does not find the Applicant’s assertion to be persuasive. The instant claims employ the open-ended transitional term “comprising”, which would not exclude a polymeric surfactant. On the other hand, since polymeric surfactant is not considered a claimed “surfactant” as admitted by the Applicant, its amounts are not considered in the surfactant : binder ratio. As such, the Applicant’s assertion is unpersuasive.
Applicant mainly asserts on pp. 7-8 of the Remarks of 09 April 2026 that Avgousti fails to teach a “quick” release composition with the claimed binder to surfactant ratio, and that the ratio of binder to surfactant is not obtained by routine experimentation and provides surprising effects, such that it contributes to a quick release of chlorantraniliprole. The data in Tables 13-23 show that the composition set forth in Applicant’s claims provided excellent stability over time and at various temperatures. Moreover, it is evident from Table 24 that Examples 1-3 and 12 released greater than 83% active ingredient within 10 min., whereas commercial sample of 0.4% chlorantraniliprole GR showed about 38% release of active ingredient in 10 minutes. Therefore, quick release compositions developed according to the present invention successfully demonstrated quick release of active ingredients from the carrier granules comprising a binder and a surfactant in a specific ratio of from about 1:5 to about 5:1 in the carrier matrix act synergistically to achieve the quick release of the active ingredients.
The Examiner does not find the Applicant’s assertions to be persuasive. In response to Applicant’s assertion that Avgousti fails to teach certain features of the invention, it is noted that the features being argued (stability over time at various temperatures, certain percentage of active release within 10 minutes, etc.) are not recited in the rejected claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See MPEP 2111.01.
Moreover, regarding the recitation of quick release in the preamble of the rejected claims, it is noted that the instant claims are directed to a composition. Where the components of the composition (i.e. compositions comprising at least one diamide insecticide dispersed in a carrier matrix comprising a binder and a surfactant in a ratio of from about 1:5 to about 5:1) are taught by the prior art, as long as the component is present in the composition made obvious, there is a reasonable expectation that the functional recitations regarding such a composition is also met, e.g., quick release, given that the function of compositions is a product of the compositions’ structure.
Finally, regarding potential evidence of unexpected results, Applicant has the burden of explaining the data in any declaration they proffer as evidence of non-obviousness. MPEP § 716.02(b)(II). Note that factually uncorroborated assertions (such as those referenced in the specification) cannot take the place of evidence in the record. See MPEP § 716.01 (c)(Il). Moreover, any differences between the claimed invention and the prior art may be expected to result in some difference in properties. The issue is whether the properties differ to such an extent that the difference is really unexpected. The burden is on applicant to establish that the results are in fact really unexpected and of statistical and practical significance. Ex parte Gelles, 22 USPQ2d 1318 (Bd. Pat. App. & Inter. 1992). See also MPEP § 716.02. Applicant does not appear to have discussed (at least in specific detail) with respect to the putative probative value of the objective data in the working examples.
Finally, assuming purely arguendo that the unexpectedness of the results has been established, the probative value of the evidence as compared to the invention as claimed must then be determined, i.e., the claims must be “commensurate in scope” with the showing. MPEP § 716.02(d). See also MPEP § 2145. Applicant must explain the “manner in which the specific compositions illustrated are considered to be commensurate in scope with the claimed invention”; see Ex parte Gelles, 22 USPQ2d 1318 (Bd. Pat. App. & Inter. 1992); see also MPEP 716.02, citing same. In this instant case, Examples 1-3 and 12 (with corresponding release rates in Table 24) employ specific components in specific percentages, and even if Applicant were to show unexpected results, they would have been obtained, for example, not with the broad class of “binder” or “surfactant” generally, but instead with specific species of the same. Note, for example, Example 1 uses a combination of sodium lignosulphonate and sodium diisopropyl naphthalene sulfonate as “surfactants”, and a combination of polyvinylpyrrolidone and kaolin as “binder”. Applicant would need to explain how these specific species are “reasonably representative” of the more broadly claimed subject matter of the claims, even were the results persuasively demonstrated to be “in fact really unexpected and of statistical and practical significance”.
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-2, 4-5, 7-8 and 10-11 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Avgousti et al. (US 2021/0186013 A1, 06/24/2021, filed 09/25/2018) (hereinafter Avgousti).
Avgousti discloses an exemplary agricultural composition (abs) comprising a fertilizer core coated with a crop protection agent composition comprising 2 parts of a nonionic surfactant, 0.5 parts of mineral particles and 0.2 parts of xanthan gum, mixed with chlorantraniliprole ([0203]-[0204]), wherein the term “crop protection agent” refers to one or more components including insecticides ([0134]).
Accordingly, Avgousti discloses an insecticidal composition comprising a fertilizer core (i.e. carrier granule) coated with a composition comprising chlorantraniliprole (i.e. at least one diamide insecticide), mixed into (i.e. disperse in the carrier matrix) 2 parts of nonionic surfactant with 0.5 parts of mineral particles and 0.2 parts of xanthan gum (i.e. water soluble binder), which provides a composition wherein the ratio of binder to surfactant is from about 1:5 to about 5:1 as instantly claimed.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-2, 4-5 and 7-8, 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Avgousti et al. (US 2021/0186013 A1, 06/24/2021, filed 09/25/2018) (hereinafter Avgousti).
An embodiment of the disclosure of Avgousti is discussed above. While Avgousti is believed to support a finding of anticipation, purely arguendo, for the purpose of complete prosecution, and for the purposes of this ground of rejection only, Avgousti will be interpreted as though it does not explicitly disclose a claimed ratio of binder to surfactant.
Avgousti discloses an agricultural composition (abs) formulated as a core/shell bead ([0147]) comprising a fertilizer core and a shell comprising a crop protection agent dispersed in a matrix ([0004]). The shell portion further comprises a polymer such as xanthan gum, fillers such as clays ([0147]), and nonionic surfactants ([0204]). The crop protection agent refers to one or more components including insecticide, nematicide and herbicides ([0134]). The insecticides include a combination of carbamates and diamides ([00144]), said diamides including chlorantraniliprole ([00150]).
Accordingly, Avgousti discloses an agricultural composition comprising chlorantraniliprole (i.e. instantly claimed diamide insecticide) dispersed in a matrix comprising a polymer such as xanthan gum (i.e. instantly claimed natural gum as binder) and nonionic surfactant (i.e. instantly claimed surfactant). Together these would provide a composition as instantly claimed.
The prior art is not anticipatory insofar as this combination must be selected from various lists/locations in the reference. It would have been obvious, however, to make the combination since all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP § 2143 (I)(A).
Regarding the ratio of binder to surfactant, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP § 2144.05(II)(A). Avgousti does not explicitly disclose an amount of polymer and surfactant. However, these are result effective variables because they control the permeability of the core. Therefore, it would have taken no more than the relative skills of one of ordinary skill in the art to have arrived at the claimed ratio through routine experimentation based on the permeability conditions desired.
Regarding claim 2, Avgousti further discloses wherein the bead form can be a granule ([0160]).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Avgousti et al. (US 2021/0186013 A1, 06/24/2021, filed 09/25/2018) (hereinafter Avgousti) in view of James et al. (US 2012/0021913 A1, 01/26/2012) (hereinafter James).
The disclosure of Avgousti is discussed in detail in the rejection above, and differs from the instant claims insofar as not explicitly disclosing wherein the fertilizer core comprises a clay.
However, James discloses a granular formulation comprising smectite clays ([0005]), such as montmorillonite ([0007]), and fertilizer materials including urea and potassium compounds fertilizers ([0036]-[0037]), which can be coated with a pesticide ([0036]). The smectite clay is useful for reducing herbicide phototoxicity on turfgrass ([0005]) and useful with any other crop ([0016]).
Accordingly, it would have been obvious to one of ordinary skill in the art to have included montmorillonite in the core of Avgousti, since it is a known and effective component suitable with a granular formulation comprising a fertilizer as taught by James.
Claims 9 and 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over Avgousti et al. (US 2021/0186013 A1, 06/24/2021, filed 09/25/2018) (hereinafter Avgousti) in view of Moores et al. (US 2019/0037843 A1, 02/07/2019) (hereinafter Moores).
The disclosure of Avgousti has been discussed in detail in the rejections above, and differs from the instant claims insofar as it does not explicitly disclose wherein clays include China clay.
However, Moores discloses wherein solid carriers used for insecticide containing formulations include clays such as kaolin clay ([0107]).
Accordingly, it would have been obvious to one of ordinary skill in the art to have formulated the composition of Avgousti with kaolin clay (i.e. instantly claimed China clay) since Avgousti discloses inclusion of clays but does not explicitly specify a particular clay, and kaolin clay is a known and effective clay suitable for insecticide containing formulations as taught by Moores.
Regarding claims 12-14, Avgousti differs from the instant claims insofar as not explicitly disclosing wherein the insecticide includes cartap, a nereistoxin analogue insecticide.
However, Moores further discloses wherein insecticide as active ingredients include cartap ([0103]).
Accordingly, it would have been obvious to one of ordinary skill in the art to have included cartap in the insecticidal composition of Avgousti since it is a known and effective active agent suitable for insecticide containing formulations as taught by Moores. Likewise, it would have been prima facie obvious to one of ordinary skill in the art to have selected cartap and chlorantraniliprole as the pesticide of Avgousti, since “it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose… [T]he idea of combining them flows logically from their having been individually taught in the prior art" as supported by MPEP § 2144.06(I).
Citation of Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Wu et al. (CN 109452267 A, 03/12/2019, ISR reference), directed to pesticide formulations comprising chlorantraniliprole, lignin sulfonic acid sodium salt, and fatty alcohol polyoxyethylene ether.
Wu et al. (CN 111838172 A, 10/30/2020, ISR reference), directed to an insecticide comprising chlorantraniliprole, prepared into granules via a coating method with 3-8% of binder and 2-5% of surfactant and balance of carrier such as river sand.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LUCY TIEN whose telephone number is (571)272-8267. The examiner can normally be reached Monday - Thursday 8:30 AM - 6:30 PM EST.
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, SAHANA KAUP can be reached at (571) 272-6897. 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.
/LUCY M TIEN/ Examiner, Art Unit 1612
/SAHANA S KAUP/ Supervisory Primary Examiner, Art Unit 1612
Prosecution Insights