DETAILED ACTION
Applicant’s response filed on05/29/2026 has been fully considered. Claims 1-14, and 16-20 are pending. Claim 1 is amended. Claim 15 is canceled. Claims 8 and 11-14 are withdrawn.
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 .
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged.
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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 1-7 and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Hopkins et al. (US 2016/0183528 A1).
Regarding claims 1, 6, 7, and 20, Hopkins teaches fungicidal compositions comprising [0066] a tridecyl alcohol ethoxylate [0070] and a polyether modified organopolysiloxane [0074], wherein the tridecyl alcohol ethoxylate is a nonionic surfactant [0109, 0156] and includes 10 EO units and has a degree of ethoxylation of 10 [0109], wherein the polyether modified organopolysiloxane is an adjuvant [0154], which reads on a composition, comprising: a non-ionic surfactant, and a polyether-modified siloxane, wherein the non-ionic surfactant has a chemical constitution according to general formula (V)
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, wherein R8 represents a linear alkyl group having 13 carbon atoms, D represents a structural unit having the formula
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130
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, E represents a structural unit having the formula
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90
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, F represents a structural unit having the formula
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136
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, p represents a number of structural units D and takes a value in the range of 0, q represents a number of structural units E and takes a value in the range of 10, r represents a number of structural units F and takes a value in the range of 0, one of R9 and R10 represents H and the other one represents a linear or branched alkyl group having 1-4 carbon atoms or represents methyl, one of R11 and R12 represents H and the other one represents a linear or branched alkyl group having 1-4 carbon atoms,
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16
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is independently, in each occurrence, selected from the group consisting of a copolymer consisting of p structural units D, q structural units E, and r structural units F arranged in a statistical sequence, a copolymer consisting of structural units Dp, Eq, and Fr arranged in a block structural represented by
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178
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, a copolymer consisting of structural units Dp, Eq, and Fr arranged in a block structure represented by
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180
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, a copolymer consisting of structural units Dp, Eq, and Fr arranged in a block structure represented by
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, a copolymer consisting of structural units, Dp, Eq, and Fr, arranged in a block structure represented by
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, a copolymer consisting of structural unites Dp, Eq, and Fr arranged in a block structure represented by
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190
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, and a copolymer consisting of structural units Dp, Eq, and Fr arranged in a block structure represented by
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, wherein (@R8O) indicates a terminus of the copolymer that is bonded to the structural unit represented in formula (V) by R8O- and (@H) indicates a terminus of the copolymer that is bonded to the structural unit represented in formula (V) by -H as claimed, wherein R8 is a linear alkyl group having 13 carbon atoms, and/or p takes a value in the range of 0, and/or q takes a value in the range of 10 as claimed, wherein R8 represents a linear alkyl group having 13 carbon atoms, one of R9 and R10 represents H and the other one represents methyl, p represents a value in the range of 0, q represents a value in the range of 10, and r is 0 as claimed, wherein R8 is a linear alkyl group having 13 carbon atoms as claimed. Hopkins teaches that the tridecyl alcohol ethoxylate is a nonionic surfactant [0109, 0156], that the polyether modified organopolysiloxane is an adjuvant [0154], that the fungicidal compositions further comprise [0066] a fungicidal compound [0067], a calcium salt of an alkylaryl sulfonate [0068], an alcohol initiated EO/PO block copolymer [0069], benzyl acetate [0072], and an N,N-dimethyl fatty acid amide [0073], that alkaline earth salts of sulfonates are anionic surfactants [0102], that an alcohol initiated EO/PO block copolymer is a nonionic surfactant [0106, 0107, 0108], that benzyl acetate is a water immiscible organic solvent [0117], that N,N-dimethyl fatty acid amide is a water immiscible organic solvent [0121], that the fungicidal composition may comprise, with respect to the composition, from about 1 gram per liter (g/L) to about 200 g/L, from about 10 g/L to about 190 g/L, from about 10 g/L to about 180 g/L, from about 20 g/L to about 160 g/L, from about 30 g/L to about 150 g/L, from about 40 g/L to about 140 g/L, from about 50 g/L to about 130 g/L, from about 60 g/L to about 120 g/L, from about 70 g/L to about 110 g/L, from about 80 g/L to about 100 g/L, or from about 85 g/L to about 95 g/L of at least one of a non-ionic surfactant [0111], that the fungicidal composition may include, with respect to the composition, from about 1 g/L to about 200 g/L of one or more adjuvants used to improve fungicidal performance [0157], and that the fungicidal composition may include from about 1 g/L to about 150 g/L, from about 5 g/L to about 150 g/L, from about 10 g/L to about 150 g/L, from about 20 g/L to about 150 g/L, from about 25 g/L to about 140 g/L, from about 30 g/L to about 130 g/L, from about 35 g/L to about 125 g/L, from about 40 g/L to about 120 g/L, from about 40 g/L to about 110 g/L, from about 40 g/L to about 100 g/L, from about 40 g/L to about 90 g/L, from about 40 g/L to about 80 g/L, from about 40 g/L to about 70 g/L, from about 50 g/L to about 70 g/L, from about 40 g/L to about 130 g/L, from about 50 g/L to about 120 g/L, from about 60 g/L to about 120 g/L, from about 70 g/L to about 120 g/L, from about 80 g/L to about 120 g/L, from about 90 g/L to about 120 g/L, or from about 100 g/L to about 120 g/L, of one or more adjuvants used to improve fungicidal performance [0157], which reads on the composition, comprising: 0.5-99.5 wt. % of a non-ionic surfactant, and 0.5-99.5 wt. % of a polyether-modified siloxane, relative to the total weight of said non-ionic surfactant and said polyether-modified siloxane, and 0 wt.% of water relative to the total weight of said non-ionic surfactant and said polyether-modified siloxane, which reads on the claimed wt.% of water. The wt. % of said non-ionic surfactant is based on the calculations 1 g/L / (1 g/L + 200 g/L) * 100% = 0.5% and 200 g/L / (200 g/L + 1 g/L) * 100% = 99.5%. The wt. % of said polyether-modified siloxane is based on the calculations 1 g/L / (200 g/L + 1 g/L) * 100% = 0.5% and 200 g/L / (1 g/L + 200 g/L) * 100% = 99.5%.
Hopkins does not teach with sufficient specificity that the composition comprises: 60-90 wt. % of said non-ionic surfactant, and 10-40 wt. % of said polyether-modified siloxane, relative to the total weight of said non-ionic surfactant and said polyether-modified siloxane. Before the effective filing date of the claimed invention, one of ordinary skill in the art would have found it obvious to select the amount of Hopkins’s tridecyl alcohol ethoxylate in Hopkins’s fungicidal composition to be from about 80 g/L to about 100 g/L, and to select the amount of Hopkins’s polyether modified organopolysiloxane in Hopkins’s fungicidal composition to be from about 40 g/L to about 70 g/L. The proposed modification would read on the composition, comprising: 53-71 wt. % of said non-ionic surfactant, and 29-47 wt. % of said polyether-modified siloxane, relative to the total weight of said non-ionic surfactant and said polyether-modified siloxane, which reads on the claimed amounts with sufficient specificity. The wt. % of said non-ionic surfactant is based on the calculations 80 g/L / (80 g/L + 70 g/L) * 100% = 53% and 100 g/L / (100 g/L + 40 g/L) * 100% = 71%. The wt. % of said polyether-modified siloxane is based on the calculations 40 g/L / (100 g/L + 40 g/L) * 100% = 29% and 70 g/L / (80 g/L + 70 g/L) * 100% = 47%. One of ordinary skill in the art would have been motivated to do so because it would have been beneficial for providing amounts of Hopkins’s tridecyl alcohol ethoxylate and Hopkins’s polyether modified organopolysiloxane that are suitable for Hopkins’s fungicidal composition and/or because it would have been obvious to try with a reasonable expectation of success because Hopkins teaches that that tridecyl alcohol ethoxylate is a nonionic surfactant [0109, 0156], that the polyether modified organopolysiloxane is an adjuvant [0154], that that the fungicidal compositions further comprise [0066] an alcohol initiated EO/PO block copolymer [0069], that an alcohol initiated EO/PO block copolymer is a nonionic surfactant [0106, 0107, 0108], that the fungicidal composition may comprise, with respect to the composition, from about 80 g/L to about 100 g/L of at least one of a non-ionic surfactant [0111], and that the fungicidal composition may from about 40 g/L to about 70 g/L of one or more adjuvants used to improve fungicidal performance [0157]. Examples of rationales that may support a conclusion of obviousness include "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success (MPEP 2143(I)(E)). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists (MPEP 2144.05(I)).
Regarding claim 2, Hopkins satisfies the limitation wherein L, R1, and/or R2 are as claimed because they are variables in the structural units selected form the group consisting of type (I), (II), (III), and (IV), claims 1 and 2 do not require the polyether-modified siloxane to consists of structural units selected form the group consisting of type (I), (II), (III), and (IV) if the non-ionic surfactant has a chemical constitution according to general formula (V), and Hopkins’s teachings read on the non-ionic surfactant has a chemical constitution according to general formula (V) as explained above for claim 1.
Regarding claim 3, Hopkins satisfies the limitation wherein one of R5 and R6, and/or y, and/or z are as claimed because they are variables in the structural units selected form the group consisting of type (I), (II), (III), and (IV), claims 1 and 3 do not require the polyether-modified siloxane to consists of structural units selected form the group consisting of type (I), (II), (III), and (IV) if the non-ionic surfactant has a chemical constitution according to general formula (V), and Hopkins’s teachings read on the non-ionic surfactant has a chemical constitution according to general formula (V) as explained above for claim 1.
Regarding claim 4, Hopkins satisfies the limitation wherein m and/or n are as claimed because they are variables in the structural units selected form the group consisting of type (I), (II), (III), and (IV), claims 1 and 4 do not require the polyether-modified siloxane to consists of structural units selected form the group consisting of type (I), (II), (III), and (IV) if the non-ionic surfactant has a chemical constitution according to general formula (V), and Hopkins’s teachings read on the non-ionic surfactant has a chemical constitution according to general formula (V) as explained above for claim 1.
Regarding claim 5, Hopkins satisfies the limitation wherein x, y, z, L, R1, R2, m, n, t1, and t2 are as claimed because they are variables in the structural units selected form the group consisting of type (I), (II), (III), and (IV), claims 1 and 5 do not require the polyether-modified siloxane to consists of structural units selected form the group consisting of type (I), (II), (III), and (IV) if the non-ionic surfactant has a chemical constitution according to general formula (V), and Hopkins’s teachings read on the non-ionic surfactant has a chemical constitution according to general formula (V) as explained above for claim 1.
Regarding claim 16, Hopkins satisfies the limitation wherein L is as claimed because it is a variable in the structural units selected form the group consisting of type (I), (II), (III), and (IV), claims 1 and 16 do not require the polyether-modified siloxane to consists of structural units selected form the group consisting of type (I), (II), (III), and (IV) if the non-ionic surfactant has a chemical constitution according to general formula (V), and Hopkins’s teachings read on the non-ionic surfactant has a chemical constitution according to general formula (V) as explained above for claim 1.
Regarding claim 17, Hopkins satisfies the limitation wherein R1 is as claimed because it is a variable in the structural units selected form the group consisting of type (I), (II), (III), and (IV), claims 1 and 17 do not require the polyether-modified siloxane to consists of structural units selected form the group consisting of type (I), (II), (III), and (IV) if the non-ionic surfactant has a chemical constitution according to general formula (V), and Hopkins’s teachings read on the non-ionic surfactant has a chemical constitution according to general formula (V) as explained above for claim 1.
Regarding claim 18, Hopkins satisfies the limitation wherein x is as claimed because it is a variable in the structural units selected form the group consisting of type (I), (II), (III), and (IV), claims 1 and 18 do not require the polyether-modified siloxane to consists of structural units selected form the group consisting of type (I), (II), (III), and (IV) if the non-ionic surfactant has a chemical constitution according to general formula (V), and Hopkins’s teachings read on the non-ionic surfactant has a chemical constitution according to general formula (V) as explained above for claim 1.
Regarding claim 19, Hopkins satisfies the limitation wherein n and 3 are as claimed because they are variables in the structural units selected form the group consisting of type (I), (II), (III), and (IV), claims 1 and 19 do not require the polyether-modified siloxane to consists of structural units selected form the group consisting of type (I), (II), (III), and (IV) if the non-ionic surfactant has a chemical constitution according to general formula (V), and Hopkins’s teachings read on the non-ionic surfactant has a chemical constitution according to general formula (V) as explained above for claim 1.
Allowable Subject Matter
Claims 9 and 10 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: Regarding claim 9, Hopkins et al. (US 2016/0183528 A1) renders obvious the composition as defined in claim 1 as explained above.
Hopkins does not teach a lixiviant medium comprising: (i) the composition as defined in claim 1, (ii) an alkali metal cyanide, (iii) a pH regulator suitable for setting a pH regulator suitable for setting a pH of the composition to a value of 9 or higher, and (iv) water. Although Seelmann-Eggebert et al. (US 2008/0196546 A1, cited in IDS) teaches an aqueous cyanide-containing composition which comprises at least one nonionic surfactant [0022], wherein the nonionic surfactant is [0041] an alcohol alkoxylate of the general formula [0051]
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[0052], wherein R3 is a branched or straight-chain C8-15-alkyl radical, R4 is propyl, p has a mean value of from 4 to 15, and q has a mean value of from 0.5 to 4 [0066], an aqueous solution adjusted to a pH of from 9.8 to 10.2 with NaOH [0023], and cyanide salts [0166], wherein the composition is used in a process for extracting metals from metal-containing materials [0227-0231], wherein the cyanide in examples is alkaline cyanide [0253, 0255], which reads on a lixiviant medium, comprising a composition comprising a non-ionic surfactant that has a chemical constitution according to general formula (V), an alkali metal cyanide, a pH regulator suitable for setting a pH of the composition to a value of 9 or higher, and water, Seelmann-Eggebert’s composition does not read on the composition of claim 1 because Seelmann-Eggebert does not teach a polyether-modified siloxane, and Seelmann-Eggebert teaches that the nonionic surfactant is in a concentration of from 0.01 to 0.2% by weight in an aqueous solution adjusted to a pH of from 9.9 to 10.2 with NaOH [0023], which means that the amount of water is greater than the claimed range of 25 wt.% or less of water relative to the total weight of said non-ionic surfactant and said polyether-modified siloxane. Also, Hopkins, Seelmann-Eggebert, and the prior art of record do not teach or suggest combining Hopkins’s composition with Seelmann-Eggebert’s composition because Hopkins teaches fungicidal compositions [0066], whereas Seelmann-Eggebert teaches that the aqueous cyanide-containing composition [0022] is used in a process for extracting metals from metal-containing materials [0227-0231], which are non-analogous art. Although Phukan et al. (US 2012/0329887 A1) teaches at least one polyorganosiloxane compound [0005] comprising at least one monovalent polyether radical [0014, 0021, 0029], wherein the at least one polyorganosiloxane compound can be used to improve ore recovery from mining operations [0121], Phukan teaches that the at least one polyorganosiloxane compound is present in a demulsifying-effective amount in a demulsifying composition [0005]. Since Seelmann-Eggebert does not teach or suggest an emulsion, there would not have been a teaching, suggestion, or motivation for one of ordinary skill in the art to have found it obvious to combine Phukan’s at least one polyorganosiloxane compound with Seelmann-Eggebert’s aqueous cyanide-containing composition. Furthermore, the prior art of record do not teach or suggest the composition as defined in claim 1 in combination with the lixiviant medium according to claim 9.
Response to Arguments
Applicant’s arguments, see p. 12-15, filed 06/08/2026, with respect to the rejection of claims 1-7 and 16-20 under 35 U.S.C. 102(a)(1) as being anticipated by Elms et al. (EP 1167502 A1, cited in IDS, made of record on 02/08/2023) as evidenced by BASF (BASF, “Technical Bulletin Letensol TDA 10”, 2016) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant’s arguments, see p. 12-15, filed 06/08/2026, with respect to the rejection of claims 1-7, 9, 10, and 16-20 under 35 U.S.C. 103 as being unpatentable over Seelmann-Eggebert et al. (US 2008/0196546 A1, cited in IDS) in view of Phukan et al. (US 2012/0329887 A1) have been fully considered and are persuasive. The rejection of claims 1-7, 9, 10, and 16-20 under 35 U.S.C. 103 as being unpatentable over Seelmann-Eggebert et al. (US 2008/0196546 A1, cited in IDS) in view of Phukan et al. (US 2012/0329887 A1) has been withdrawn.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID KARST whose telephone number is (571)270-7732. The examiner can normally be reached Monday-Friday 8:00 AM-5:00 PM.
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/DAVID T KARST/Primary Examiner, Art Unit 1767
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