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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 08/21/2026 has been entered.
Response to Amendment
The Amendment filed 08/21/2026 has been entered. Applicant’s amendments are in response to the Final Office Action mailed 04/30/2026. Applicant’s claims have been amended in the following manner: independent claim 1 has been modified by minor language changes, and several claims are cancelled. Furthermore, new claims 10-19 have been entered to draw a new ground of rejection. In response to the new claims, Morita and Seetharamu are added to address the obviousness of the control outcomes for pesticides like fipronil and flonicamid, as prompted by amendment.
The following objections/rejections are withdrawn: none.
The Examiner further acknowledges the following:
Claims 1, 3, 5, and 7-19 are pending.
Claims 1, 3, 5, and 7-19 are presented for examination and rejected as set forth below.
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.
Claims 1, 3, 5, and 7-19 are rejected under 35 U.S.C. 103 as being unpatentable over Chawla (Environmental Science and Pollution Research, 2018), and in further view of Ambily (International Journal of Agriculture Sciences, 2020; published April 30, 2020, prior to the instant priority date of 08/10/2020).
Applicant’s claims are directed to a method for reducing whitefly and/or spotted bollworm insect pests in a cotton crop, comprising contacting the insect pest with a wettable granular formulation comprising fipronil and flonicamid, at a concentration of 90 g/ha to 150 g/ha.
Chawla teaches a flonicamid and fipronil combination that is useful for control of pests on cotton plants (abstract), and mentions whiteflies (pg 19168, paragraph 4) and bollworm (pg 19168, paragraph 2) as targets of these chemicals. Chawla also suggests synergy between fipronil and flonicamid (pg 19168, paragraph 2) with high effectiveness in controlling pests in cotton (pg 19168, paragraph 5). Chawla teaches of the urgent need for pesticide control of rice and cotton crops (pg 19168, paragraph 2), and cotton particularly is an important cash and oilseed crop (pg 19167, paragraph 1).
Regarding claims 1, 3, 5, 8-10 and 19: Chawla teaches a flonicamid and fipronil combination is useful for control of pests on cotton plants (abstract), suggests synergy between fipronil and flonicamid (pg 19168, paragraph 2), and mentions whiteflies (pg 19168, paragraph 4) and bollworm (pg 19168, paragraph 2) as targets of these chemicals. Chawla teaches a method of equal amount application (e.g., 60 + 60 a.i. ha-1) of a combination of fipronil and flonicamid on cotton crop (pg 19170, ‘field study’; pg 3 of ESI, Supplementary Table 2).
Chawla teaches an application rate of 60 or 120 g/ha (pg 19170, ‘field study’); however, the pesticides can be applied in rates of 150 g/ha (pg 19176, paragraph 1) and 300 g/ha (pg 19175, paragraph 1), covering all instantly claimed application rates, as obvious (i.e., reads on rate application of instant claims 1-2, 4 and 6).
Regarding claim 7: Chawla demonstrates multiple spray application to the cotton crops (i.e., line two separates spray application between 10/1/2014 and 11/29/2014, which is about 2 months) in Supplementary table 2 (pg 3 of electronic supplementary material). Furthermore, Chawla teaches a limited half-life of these pesticides (pg 19176, paragraphs 1 and 2), and thus, a PHOSITA would apply additional pesticide to maintain effective amounts of pesticide for pest control, which is demonstrated by the multiple spray application protocols of Supplementary table 2.
Regarding claims 11-12: Chawla teaches: “Fipronil and flonicamid both are very effective in controlling the pests in cotton” (pg 19168, col 2), in which the pests are by example bollworm and white fly (pg 19168), and further “different pesticides when present in mixtures show synergism, and this synergistic effect has been demonstrated in many studies (Laetz et al. 2009). A combination product of fipronil and flonicamid was introduced in this series” (pg 19168, col 1). Thus, a PHOSITA would expect an additive (and/or synergistic) effect of applying a combination of fipronil and/or flonicamid compared to fipronil and/or flonicamid applied alone, because the two agents are known to have pesticidal effect against whiteflies and bollworms for cotton plants would have an additive and/or synergistic effect compared to one pesticide alone.
In summary, Chawla teaches a method of applying a combination of equal amounts of flonicamid and fipronil on cotton for control of pests (e.g., bollworms and whiteflies, which are known to infest cotton locules) at varied application rates. However, Chawla does not teach the specific flonicamid and fipronil water dispersible granules (WDG) formulation in the instant wt% amounts (instant claims 1, 3, 5, and 7-19).
Ambily teaches a method of applying flonicamid 15% and fipronil 15% water dispersible granules (i.e., this reads on the “premix…wettable granular formulation” of claim 3) to control pests (pg 9760, introduction; pg 9763, conclusions; i.e., Ambily teaches this WDG formulation is considered the best combination product against a variety of pests), and suggests synergy between fipronil and flonicamid (pg 9760, introduction). Ambily teaches an application rate of 0.6 to 200 g/ha (pg 9760, paragraph 1), 300 g/ha (pg 9763, paragraph 1), and 400 or 800 g/ha (abstract). Note that application rates that lie in between the low and high amounts of Ambily are also obvious.
It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify the method of Chawla to use Ambily’s flonicamid 15% and fipronil 15% water dispersible granules (WDG) to control pests of the cotton crop, because Chawla teaches high effectiveness of the general pesticidal combination of flonicamid and fipronil to control pests in cotton (pg 19168, paragraph 5), and cotton particularly is an important cash and oilseed crop (pg 19167, paragraph 1).
Finally, regarding the method outcomes of claims 11-19: When the combined Prior Art teaches the same flonicamid 15% and fipronil 15% water dispersible granules, the same concentration of 120 g/ha, the same plant target (i.e., cotton), and the same pests meant for control (i.e., whitefly and bollworm), then the method outcome of instant claims 13-19 necessarily flows from the active method steps of instant claim 1. A compound and its properties (i.e., pesticidal activity) are inseparable.
Claims 1, 3, 5, and 7-19 are further rejected under 35 U.S.C. 103 as being unpatentable over Chawla (Environmental Science and Pollution Research, 2018), Ambily (International Journal of Agriculture Sciences, 2020; published April 30, 2020, prior to the instant priority date of 08/10/2020), and in further view of Morita (US20110028521A1) and Seetharamu (Legume Research, 2019).
As discussed above, the combined Prior Art teaches the method of applying a flonicamid 15% and fipronil 15% water dispersible granules to cotton crop to control bollworm and whitefly (i.e., the method outcomes of claims 13-19, then necessarily flow from the obvious method steps of instant claim 1). However, the Art does not teach typical pest reduction numerical values over a certain time period, in an explicit manner (instant claims 13-19).
Morita makes obvious the combination of flonicamid (abstract) and fipronil [0051], and further describes the activity of flonicamid against cotton insects (e.g., aphid), bollworm, and whiteflies [0040]. Morita demonstrates that flonicamid alone is capable of controlling insects such as Rhopalosiphum padi (i.e., aphid) up to 97-98 “controlling value” (i.e., higher controlling value means higher reduction of pest), after 2 days or 7 days (Test Example 3, [0086], Table 5).
Seetharamu teaches flonicamid control of whitefly by 72% (pg 4, paragraph 1) and fipronil reduction of whitefly by 75% (pg 4, paragraph 3).
Therefore, the numerical pest reduction amounts after certain number days of application for instant claims 13-19 are made reasonably obvious based on the Art.
Response to Arguments
Applicants arguments, see pg 5-11, filed 08/21/2026, with respect to the 103 rejection of claims 1-9 under rejection have been fully considered and are not persuasive. Thus, the 103 rejection is maintained. Furthermore, the new claims are rejected based on the Art on record, and new references Morita and Seetharamu further address the newly added claims.
On page 5, Applicant addresses the 112(b) rejections by amendment, in which the amendments are found acceptable.
Note that a general recognized theme of the arguments against the 103 obviousness rejection is that the references are treated piecemeal, which is per se unpersuasive.
It is the combined teachings that define the art. For each individual reference, note that all elements of each prior art reference need not read on the claimed invention, rather, the proper test for obviousness is what the combined teachings would have suggested to a person of ordinary skill in the art. In re Kotzab, 217 F.3d 1365, 1370 (Fed. Cir. 2000).
Furthermore, a combination of the art does not require bodily incorporation: The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Furthermore, “A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421, 82 USPQ2d 1385, 1397 (2007). “[I]n many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle.” Id. At 420, 82 USPQ2d 1397.
However, the Examiner will respond to arguments of substance when presented.
On page 6, Applicant attacks Chawla for being directed to methods of testing. A PHOSITA would understand that the teachings of Chawla are not limited to a specific embodiment of the reference, but includes general teachings that apply to the Art as a whole (i.e., a method of testing pesticidal residue is directly a result of using said pesticide for control of pests in plants). Furthermore, the analogy of a reference to the instant claim set is considered broadly: Applicant is reminded that the scope of analogous art is to be considered broadly. Wyers v. Master Lock Co., No. 2009-1412, 2010 WL 2901839 (Fed. Cir. July 22, 2010). Art is analogous if it is (1) from the same field of endeavor, regardless of the problem addressed, or (2) reasonably pertinent to the particular problem with which the inventor is involved. In re Clay, 966 F.2d 656, 658–59 (Fed. Cir. 1992). Thus, methods related to testing pesticide application residue of flonicamid and fipronil combination pesticide is from the same field of endeavor that teaches application of flonicamid and fipronil combination pesticide.
On page 6, Applicant attacks Chawla for not disclosing application concentrations of the active ingredient in a wettable granular (WG – also referred to a s a WDG or water dispersible granule – see Ambily at pg 9763, ‘abbreviations’) formulation (but instead Applicant suggests Chawla intends only a spray application). The argument that the “active-ingredient dose, as disclosed in Chawla, is distinct from an application concentration of fipronil and flonicamid in a wettable granular formulation” is asserted without evidence. Furthermore, the Examiner notes that water dispersible granules are factually enabled for spray application by dispersing and/or dissolving in water (i.e., even Applicant’s instant claim 7 demonstrates spraying of a wettable granular formulation). Thus, the WDG of Ambily are capable of being sprayed in the same manner as Chawla teaches. Additionally, in terms of obviousness, application rates of an active pesticide ingredient are a result effective variable that a PHOSITA would optimize in order to improve pesticide control in a cotton crop: See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (indicating that 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). Finally, it is the combined teachings that demonstrate the Art, and Ambily teaches flonicamid 15% and fipronil 15% water dispersible granules as a formulation, that is similar to the 1:1 ratio of flonicamid and fipronil used by Chawla, and therefore, the WG formulation of Ambily would be suitable for use on the targeted cotton crops of Chawla.
On page 7, Applicant attacks Ambily for not disclosing teachings on cotton. Note that Chawla teaches the obviousness of applying flonicamid and fipronil combination formulations on cotton, and therefore it would be obvious to apply Ambily’s compositions on to cotton crop.
On page 7, Applicant attacks Chawla for not teaching 90 to 150 g/ha (aka, g AI/ha, which is grams of active ingredient, per hectare). Note that Ambily teaches the obviousness of applying flonicamid and fipronil combination formulations at 60, 120 g/ha (pg 19170, ‘field study’), and 75, 150 g/ha (pg 19176, paragraph 1), which therefore makes the instant range of claim 1 obvious.
On page 7-8, Applicant attacks Rawal for not teaching all elements of the claim scope. Rawal was provided to teach the “boll” and/or “locule” of the previous claim set (claim 6), which has been cancelled. Therefore, Rawal is no longer relied on for evidentiary information of plant bolls or locules.
On page 8-11, Applicant argues that the present data represents an unexpected result. Focusing on data that is commensurate with the scope of claim 1, the Examiner looks at Table 1 Sr. No. 2 that demonstrates an g AI/ha concentration of 120 g/ha (i.e., this exactly the same g AI/ha concentration as Chawla of 120 + 120 g a.i. ha−1 that is applied to cotton on pg 19170, ‘field study).
To repeat information of the 103 rejection:
Morita makes obvious the combination of flonicamid (abstract) and fipronil [0051], and further describes the activity of flonicamid against cotton insects (e.g., aphid), bollworm, and whiteflies [0040]. Morita demonstrates that flonicamid alone is capable of controlling insects such as Rhopalosiphum padi (i.e., aphid) up to 97-98 “controlling value” (i.e., higher controlling value means higher reduction of pest), after 2 days or 7 days (Test Example 3, [0086], Table 5).
Seetharamu teaches flonicamid control of whitefly by 72% (pg 4, paragraph 1) and fipronil reduction of whitefly by 75% (pg 4, paragraph 3).
Therefore, the method outcomes presented by Applicant (i.e., application of a combination of fipronil and flonicamid to provide pesticidal activity against cotton pests) is an expected outcome, based on the Art. Note that any differences between the claimed invention and the prior art may be expected to result in some differences in properties. The issue is whether the properties differ to such an extent that the difference is really unexpected. In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Consequently, we must determine whether the results obtained in the closest prior art and those set forth by Applicants are sufficiently different in kind, and not merely in degree, so as to be unexpected by a person of ordinary skill in the art at the time of invention. See Iron Grip Barbell Co. v. USA Sports, Inc., 392 F.3d 1317, 1322 (Fed. Cir. 2004) (Unexpected results that are probative of nonobviousness are those that are "different in kind and not merely in degree from the results of the prior art") (citation omitted). A PHOSTIA would expect a flonicamid and fipronil combination formulation to be more potent than flonicamid and fipronil alone, based on the suggested synergistic activity between the two pesticides, taught by Chawla and Ambily. Furthermore, Morita and Seetharamu teach control of aphids and whiteflies in a similar range to Applicant’s reduction values in instant claims 13-19. Thus, the instant pest reduction values are not surprising.
Additionally, Applicant does not demonstrate a criticality of the 90 g/ha to 150 g/ha range in Table 4 (i.e., the activity significantly drops outside of this range). To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). Any range demonstrated as critical should be commensurate in scope with the claim set.
Applicant merely demonstrates that the improvement of the combination formulations of 1-3 vs flonicamid 50% WG (150 g/ha) and Fipronil 5% SC (1500 g/ha). This improvement is an expected result of the Art, because (1) the art teaches the same formulation as useful for bollworm and whitefly control in cotton (2) flonicamid and fipronil are taught by the literature to have a synergistic relationship in pesticide use (3) the controls selected (i.e.,, Sr. No. 4 and 5) are not consistent with the alteration of a single variable, compared to the 15% and fipronil 15% water dispersible granules (i.e., an appropriate comparison between the inventive compositions and the control compositions cannot be made to discern an unexpected result). To counteract an obviousness rejection: “[A]ppellants have the burden of explaining the data…they proffer as evidence of non-obviousness.” Ex parte Ishizaka, 24 USPQ2d 1621, 1624 (Bd. Pat. App. & Inter. 1992). The evidence relied upon should establish “that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance.” Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat. App. & Inter. 1992).f
On page 11, Applicant concludes. The claims remain under obviousness rejection, because the argument for unexpected results was not persuasive.
Correspondence
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/R.P./Examiner, Art Unit 1614 9/3/2026
/SEAN M BASQUILL/Primary Examiner, Art Unit 1614
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