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 Claims 1-17 are pending; claims 1-5 and 7-14 are examined, claims 6 and 15-17 are withdrawn from further consideration as being drawn to a nonelected invention/species.
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-14, and species election of chlorantraniliprole as a diamide insecticide and cartap or cartap hydrochloride as a single additional insecticide in the reply filed on 09/16/2025 is acknowledged. Accordingly, claims 15-17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim 6 is also withdrawn from further consideration as being drawn to a nonelected species.
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 12 and 13 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 12 and 13 recite various “groups of insecticides. The claims are indefinite because it is unclear how the recitation of “group” further limits each class of insecticide. For example, it is not clear what other compounds are included in the benzoylphenyl urea “group” insecticide that would differ from benzoylphenyl urea insecticide, such that one would know whether a benzoylphenyl urea insecticide infringes on the claimed invention.
To obviate this issue, it is suggested to remove “group” throughout each claim.
Claims 12 and 13 also recite a nereistoxin “analogue” as one of the groups of insecticides. The claims are indefinite because it is unclear how the recitation of “analogue” further limits nereistoxin insecticide, for similar reasons as discussed above.
To obviate this issue, it is suggested to remove “analogue” from each claim.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
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 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
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 group 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
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LUCY M TIEN whose telephone number is (571)272-8267. The examiner can normally be reached Monday - Friday 10:00 AM - 6:00 PM EST.
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/LUCY M TIEN/ Examiner, Art Unit 1612
/FREDERICK F KRASS/ Supervisory Patent Examiner, Art Unit 1612