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 .
This Office Action is in response to Applicant’s amendment filed August 29, 2025. Claims 1-3, 5-7, and 9-14 are pending in the application. Claims 1, 3, 5, 7, 9, and 11 have been amended. Claims 1-3, 5-7, and 9-14 will be examined.
Status of the Claims
The rejection of claims 3, 4, 7, 8, 9, and 11 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or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention is withdrawn due to Applicant’s amendment of the claims.
The rejection of claims 1-3, 5-7, and 9-14 under 35 U.S.C. 103 as being unpatentable over Peng et al. (CN109924057A, Translation) in view of Yang et al. (CN104823626A, Translation) and Chen Abstract (CN105994415A, Abstract) is withdrawn due to Applicant’s amendment to the claims.
Rejections not reiterated from the previous Office Action are hereby withdrawn. The following rejections are newly applied. They constitute the complete set of rejections presently being applied to the instant application.
New Rejections Necessitated by Amendment filed August 29, 2025
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 3, 5, and 9 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.
Claim 3 recites the limitation "wherein the bactericidal insecticide is at least one of a tea saponin, an azadirachtin, a toosendanin, a matrine, a celangulin and a stemonine" in lines 3-4. There is insufficient antecedent basis for this limitation in the claim. Claim 3 is dependent from claim 1, wherein the bactericidal insecticide, as amended, is a combination of tea saponin and azadirachtin with a weight ratio of the tea saponin to the azadirachtin being 10:1. Since two specific bactericidal insecticides are claimed in claim 1, there is a lack of antecedent basis for the bactericidal insecticides claimed in claim 3.
In addition, it is unclear if “a tea saponin” in line 3 of the claim is the same “tea saponin” claimed in claim 1 or an additional “tea saponin”. Applicant’ should clarify the claim.
Claim 5 recites “the non-ionic surfactant is at least one of the tea saponin, a high-carbon fatty alcohol polyoxyethylene ether, a fatty acid polyoxyethylene ester and a dehydrated sorbitol ester”. The use of the term “the” before “tea saponin” indicates this is antecedent for “a tea saponin” that is claimed in claim 3 from which claim 5 depends. However, “the tea saponin” in claim 3 is the bactericidal insecticide. It is also the bacterial insecticide in claim 1 from which claim 3 depends. It is unclear how “the tea saponin” can be a bactericidal insecticide and a non-ionic surfactant. Applicant should clarify.
Claim 9 recites “the non-ionic surfactant is at least one of a tea saponin, a high-carbon fatty alcohol polyoxyethylene ether…and a dehydrated sorbitol ester” in lines 3-4. It is unclear if the “tea saponin” is the same “tea saponin” claimed in claim 1 from which claim 9 depends. If it is the same “tea saponin”, it is unclear how it can be a non-ionic surfactant and a bactericidal insecticide. Applicant should clarify.
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.
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.
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 1-3, 5-7, and 9-14 are rejected under 35 U.S.C. 103 as being unpatentable over Peng et al. (CN109924057A, Translation) in view of Chen Abstract (CN105994415A, Abstract), Xu et al. (CN 102484992A, Translation), and Yang et al. (CN104823626A, Translation), Peng et al. and Yang et al. cited by Applicant on the IDS filed 10/26/2022. English translations of CN109924057A (Peng et al.) and CN104823626A (Yang et al.) from Espacenet used for translation purposes.
Applicant’s Invention
Applicant claims an emulsion in water for preventing and treating a yellow shoot of a citrus fruit tree, wherein it is composed of the following components according to the weight ratio: 100-300 parts of a dodecanol, 2-150 parts of a hexadecanol, 1-100 parts of a bactericidal insecticide, 5-150 parts of a plant nutrient, 5-10 parts of an emulsifier, 4-6 parts of a co-emulsifier, 40 parts of a thickener, and 500-800 parts of water; wherein the bactericidal insecticide is a combination of tea saponin and azadirachtin with a weight ratio of the tea saponin to the azadirachtin being 10:1, and the plant nutrient is one or a combination of an amino acid containing water-soluble fertilizer and a humic acid containing water-soluble fertilizer.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Regarding claims 1 and 2, Peng et al. teach a method for preventing and controlling the spread of citrus Huanglongbing by using a photosynthetic high-fat film, characterized in that it comprises a photosynthetic high-fat film agent, and the photosynthetic high-fat film agent is composed of the following components by weight ratio: 100 parts of dodecyl alcohol, 200 parts cetyl alcohol (hexadecanol), 10 parts of emulsifier, 6 parts of co-emulsifier, 50 parts of thickener, 800 parts of water; diluted with water by using photosynthetic high-fat film agent (page 6, claim 1, translation).
Regarding claims 5 and 9, Peng et al. teach the emulsifier is one of a high carbon fatty alcohol polyoxyethylene ether, a fatty acid polyoxyethylene ester, and a sorbitan ester (page 2, paragraph 1, translation).
Regarding claims 6 and 10, Peng et al. teach the co-emulsifier is n-butanol or propylene glycol (page 2, paragraph 2, translation).
Regarding claims 7 and 11, Peng et al. teach the thickener is one gum Arabic, methyl cellulose, xanthan gum, white carbon black, attapulgite and bentonite (page 2, paragraph 3, translation).
Regarding claim 12, Peng et al. teach preparation method is as follows: the dodecyl alcohol and the cetyl alcohol are placed in a container and heated to 60 degrees to melt, and then the emulsifier and the co-emulsifier are added to the container to pass the high shear. The homogenizer is homogenized, the rotation speed is 5000 rpm, the rotation is 10 minutes, and then 800 parts of water of 60 degrees is added to the container, and homogenized by a high shear homogenizer, the rotation speed is 10,000 rpm, and the rotation is 10 minutes. The temperature was lowered to 40 degrees, and then the thickener was added to the vessel, homogenized by a high shear homogenizer, and rotated at 10,000 rpm for 30 minutes (page 2, paragraph 5, translation).
Regarding claim 13, Peng et al. teach at the maturity stage, the photosynthetic high-fat membrane was diluted 300 times with water, and the entire mature tree was sprayed every 7 days (page 3, paragraph 3, translation).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Peng et al. do not specifically teach 1-100 parts of a bactericidal insecticide, 5-150 parts of a plant nutrient, as claimed in claim 1, 10-50 parts of a bactericidal insecticide, 20-80 parts of the plant nutrient, as claimed in 2, the bactericidal insecticides claimed in claims 3 and 5, the bactericidal insecticide is a combination of tea saponin and azadirachtin with a weight ratio of the tea saponin to the azadirachtin being 10:1 or the plant nutrient is one or a combination of an amino acid containing water-soluble fertilizer and a humic acid containing water-soluble fertilizer, the emulsion in water is sprayed on a root of the fruit tree after being diluted by 300 times. It is for this reason the Chen Abstract, Xu et al., and Yang et al. are added as secondary references.
The Chen Abstract teaches a vegetable insecticide and in particular relates to a citrus Huanglongbing insecticide. The citrus Huanglongbing insecticide comprising the following components in parts by weight: 15-35 parts tea saponin, 15-20 parts fulvic acid, and 15-25 parts of azadirachta indica and 100-200 parts water. The insecticide belongs to citrus insecticides, has strong pest killing effects, is efficient and safe, has good control effects, and is capable of preventing the pests from having insecticide resistance and cannot have side effects on citrus (entire Abstract).
Xu et al. teach a pesticide relating to pesticide composition including effective quantity of natural source pesticide azadirachtin and natural surface active tea saponin, wherein the active ingredient namely tea saponin in the synergistic pesticide composition. Xu et al. teach the mass ratio of the azadirachtin to the tea saponin is most preferably 1:1 to 1:10 (page 1, Abstract). Xu et al. teach a high efficiency, low toxicity, broad spectrum and no easy drug resistance caused by pesticide: tea saponin and azadirachtin pesticide synergistic composition (page 2, paragraph [0008]).
Yang et al. teach an agro-ecological technique for preventing and controlling citrus Huanglongbing and simultaneously harvesting organic citrus, characterized in that (1) production cultivation: using bio-organic fertilizer, spraying metabolic photosynthetic accelerator and ionic liquid for improving anti-reverse force; (2) control of pests and diseases, weeds using biological pesticides and artificial and mechanical weeding (page 9, claim 1, translation).
Yang et al. teach the “bio-organic fertilizer” is a fertilizer which is inoculated with beneficial microorganisms by inoculating manure with crops, ash, cedar and fulvic acid. Reach the natural restoration of contaminated soil, balance the supply of nutrients, and restore the aging and damaged roots to promote the rapid growth of new roots and new branches (page 3, paragraph 8, translation).
Yang et al. teach the “metabolic photosynthesis promoter” is a biological enzyme containing a complete rich nucleic acid, and amino acid, and a trace element (page 4, paragraph 1, translation).
Yang et al. teach the “biological pesticide” adopts a biological source insecticide and biological source fungicide for plant-derived pesticides: the biological source insecticide is matrine (page 4, paragraph 8, translation).
Yang et al. teach the metabolic photosynthetic accelerator and the biological pesticide are mixed and sprayed (page 9, claim 2).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine the teachings of Peng et al., the Chen Abstract, Xu et al., and Yang et al. and use a bactericidal insecticide, as claimed in claims 1 and 2, specifically a combination of tea saponin and azadirachtin. Peng et al. teach a method for preventing and controlling the spread of citrus Huanglongbing by using a photosynthetic high-fat film, characterized in that it comprises a photosynthetic high-fat film agent, and the photosynthetic high-fat film agent is composed of the following components by weight ratio: 100 parts of dodecyl alcohol, 200 parts cetyl alcohol (hexadecanol), 10 parts of emulsifier, 6 parts of co-emulsifier, 50 parts of thickener, 800 parts of water; diluted with water by using photosynthetic high-fat film agent. One of ordinary skill in the art would have been motivated to add a combination of tea saponin and azadirachtin to the compositions taught by Peng et al. because the Chen Abstract teach that these two bactericidal insecticides are effective in controlling and/or preventing Huanglongbing, a bacterial infection of citrus plants, which is the same plant disease that the composition taught by Peng et al. prevents and controls. Xu et al. teach a composition comprising tea saponin and azadirachtin provide a high efficiency, low toxicity, broad spectrum and no easy drug resistance caused by pesticide. As such, in view of In re Kerkhoven, 205 USPQ 1069 (C.C.P.A. 1980), it is prima facie obvious to combine two or more compositions each of which is taught by prior art to be useful for the same purpose in order to form a third composition that is to be used for the very same purpose. The idea of combining them flows logically from their having been individually taught in prior art, thus claims that requires no more than mixing together two or three components that prevent or control citrus Huanglongbing set forth prima facie obvious subject matter. Therefore, the skilled artisan would have been motivated to try the combination of dodecanol, hexadecanol, tea saponin, azadirachtin, plant nutrient, an emulsifier, a co-emulsifier, a thickener and water as a composition to control and/or prevent Huanglongbing, with a reasonable expectation of success.
Regarding the amount of the bactericidal insecticide of 1-100 parts in the composition, one of ordinary skill in the art would have been motivated to use experimentation and optimization to determine the amount to be used to form the composition. The Chen Abstract teaches that the citrus Huanglongbing insecticide comprising the following components in parts by weight: 15-35 parts tea saponin, 15-20 parts fulvic acid, and 15-25 parts of azadirachta indica and 100-200 parts water. 15-35 parts tea saponin and 15-25 parts azadirachta indica falls within the ranges of 1-100 parts and 10-50 parts, as claimed in claim 1. Therefore, one of ordinary skill in the art would have been motivated to use the teachings of the Chen Abstract to determine the optimal amount of bactericidal insecticide to use in the compositions to effectively control and/or prevent citrus Huanglongbing. The adjustment of particular conventional working conditions is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Regarding the limitation wherein the weight ratio of the tea saponin to the azadirachtin being 10:1, Xu et al. teach a pesticide composition including an effective quantity of natural source pesticide azadirachtin and natural surface active tea saponin, wherein the active ingredient namely tea saponin in the synergistic pesticide composition. Xu et al. teach the mass ratio of the azadirachtin to the tea saponin is most preferably 1:1 to 1:10. The Chen Abstract teaches that the citrus Huanglongbing insecticide comprising the following components in parts by weight: 15-35 parts tea saponin, 15-20 parts fulvic acid, and 15-25 parts of azadirachta indica and 100-200 parts water. 15-35 parts tea saponin and 15-25 parts azadirachta indica falls within the ranges of 1-100 parts and 10-50 parts, as claimed in claim 1. One of ordinary skill in the art would have been motivated to use the teachings of Xu et al. in the compositions of Peng et al., as modified by the Chen Abstract, to determine the weight ratio of the combination of the tea saponin and azadirachtin. Since Xu et al. teach that the preferred mass ratio of azadirachtin to the tea saponin is most preferably 1:10, one of ordinary skill in the art would have been motivated to use this teaching as a guide to form a synergistic formulation with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine the teachings of Peng et al., the Chen Abstract, Xu et al. and Yang et al. and use a plant nutrient, as claimed in claims 1 and 2, specifically an amino acid. Peng et al. teach a method for preventing and controlling the spread of citrus Huanglongbing by using a photosynthetic high-fat film, characterized in that it comprises a photosynthetic high-fat film agent, and the photosynthetic high-fat film agent is composed of the following components by weight ratio: 100 parts of dodecyl alcohol, 200 parts cetyl alcohol (hexadecanol), 10 parts of emulsifier, 6 parts of co-emulsifier, 50 parts of thickener, 800 parts of water; diluted with water by using photosynthetic high-fat film agent. One of ordinary skill in the art would have been motivated to add an amino acid because Yang et al. teach an agro-ecological technique for preventing and controlling citrus Huanglongbing and simultaneously harvesting organic citrus, characterized in that (1) production cultivation: using bio-organic fertilizer, spraying metabolic photosynthetic accelerator and ionic liquid for improving anti-reverse force; 2) control of pests and diseases, weeds using biological pesticides and artificial and mechanical weeding. Yang et al. teach the “metabolic photosynthesis promoter” is a biological enzyme containing a complete rich nucleic acid, and amino acid, and a trace element and the “biological pesticide” adopts a biological source insecticide and biological source fungicide for plant-derived pesticides: the biological source insecticide is matrine. As such, in view of In re Kerkhoven, 205 USPQ 1069 (C.C.P.A. 1980), it is prima facie obvious to combine two or more compositions each of which is taught by prior art to be useful for the same purpose in order to form a third composition that is to be used for the very same purpose. The idea of combining them flows logically from their having been individually taught in prior art, thus claims that requires no more than mixing together two or three components that prevent or control Huanglongbing set forth prima facie obvious subject matter. Therefore, the skilled artisan would have been motivated to try the combination of dodecanol, hexadecanol, an amino acid, tea saponin, azadirachtin, amino acid, an emulsifier, a co-emulsifier, a thickener and water as a composition to control and/or prevent Huanglongbing, with a reasonable expectation of success.
Regarding the amount of the plant nutrient in the composition, one of ordinary skill in the art would have been motivated to use experimentation and optimization to determine the amount to be used to form the composition. The Chen Abstract teaches that the citrus Huanglongbing insecticide comprising the following components in parts by weight: 15-35 parts tea saponin, 15-20 parts fulvic acid, and 15-25 parts of azadirachta indica and 100-200 parts water. Therefore, one of ordinary skill in the art would have been motivated to use the teachings of the Chen Abstract, which teaches that fulvic acid, a plant nutrient is used 15-20 parts of the composition, to determine the optimal amount of plant nutrient to use in the compositions to effectively control and/or prevent citrus Huanglongbing. The adjustment of particular conventional working conditions is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results, without evidence to the contrary.
Regarding the limitations of claim 12, wherein the bactericidal insecticide and the plant nutrient are added to the container, Peng et al. teach the preparation method is as follows: the dodecyl alcohol and the cetyl alcohol are placed in a container and heated to 60 degrees to melt, and then the emulsifier and the co-emulsifier are added to the container to pass the high shear. The homogenizer is homogenized, the rotation speed is 5000 rpm, the rotation is 10 minutes, and then 800 parts of water of 60 degrees is added to the container, and homogenized by a high shear homogenizer, the rotation speed is 10,000 rpm, and the rotation is 10 minutes. The temperature was lowered to 40 degrees, and then the thickener was added to the vessel, homogenized by a high shear homogenizer, and rotated at 10,000 rpm for 30 minutes. One of ordinary skill in the art would have been motivated to mix in other components that are taught in the prior art to control or prevent citrus Huanglongbing. One of ordinary skill in the art would have been motivated to use a known technique to mix in components that are efficient and safe, has good control effects, and is capable of preventing the pests from having insecticide resistance and cannot have side effects on citrus, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
Regarding the limitation of the emulsion in water is sprayed on a root of the fruit tree after being diluted by 300 times, as claimed in claims 13 and 14, Peng et al. teach at the maturity stage, the photosynthetic high-fat membrane was diluted 300 times with water, and the entire mature tree was sprayed every 7 days. It would have been obvious to one of ordinary skill in the art that if the entire mature tree is sprayed, that would include the roots of the tree, without evidence to the contrary.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Response to Arguments
Applicant's arguments filed August 29, 2025 have been fully considered but they are not persuasive. Applicant argues Peng aims to provide a method of using photosynthetic high-fat film agent to prevent and control the spread of a citrus huanglongbing, which can effectively reduce the invasion of huanglongbing in citrus. Applicant argues that Peng cannot kill or eliminate the Huanglongbing bacteria that have already invaded the fruit trees, and make the yellowed leaves regain vitality. In response to Applicant’s argument, these arguments are the intended purpose of the composition currently claimed. If the prior art structure is capable of performing the intended use, then it meets the claim.
Applicant argues Peng only disclose a prevention effect and does not teach how to further eliminate the Huanglongbing pathogen in fruit trees and restore their vitality. Applicant argues that the skilled in the art would not consider further adding bactericidal agents and plant nutrients to the film agent of Peng. Applicant argues that those skilled in the art would avoid using bactericidal agents because the bacteria will develop drug resistance. In response to Applicant’s argument, based on the new rejection of record, Peng et al. teach a method for preventing and controlling the spread of citrus Huanglongbing by using a photosynthetic high-fat film, characterized in that it comprises a photosynthetic high-fat film agent, and the photosynthetic high-fat film agent is composed of the following components by weight ratio: 100 parts of dodecyl alcohol, 200 parts cetyl alcohol (hexadecanol), 10 parts of emulsifier, 6 parts of co-emulsifier, 50 parts of thickener, 800 parts of water; diluted with water by using photosynthetic high-fat film agent. One of ordinary skill in the art would have been motivated to add a combination of tea saponin and azadirachtin to the compositions taught by Peng et al. because the Chen Abstract teach that these two bactericidal insecticides are effective in controlling and/or preventing Huanglongbing, a bacterial infection of citrus plants, which is the same plant disease that the composition taught by Peng et al. prevents and controls. Xu et al. teach a composition comprising tea saponin and azadirachtin provide a high efficiency, low toxicity, broad spectrum and no easy drug resistance caused by pesticide. It is well settled that in view of In re Kerkhoven, 205 USPQ 1069 (C.C.P.A. 1980), it is prima facie obvious to combine two or more compositions each of which is taught by prior art to be useful for the same purpose in order to form a third composition that is to be used for the very same purpose. The idea of combining them flows logically from their having been individually taught in prior art, thus claims that requires no more than mixing together two or three components that prevent or control citrus Huanglongbing set forth prima facie obvious subject matter, without evidence to the contrary.
Regarding Applicant’s argument of bacteria will develop drug resistance, Xu et al. teach a composition comprising azadirachtin and tea saponin with a preferred mass ratio of 1:10 provide a high efficiency, low toxicity, broad spectrum and no easy drug resistance caused by pesticide. As such, it would have been obvious to one of ordinary skill in the art that the composition taught by Peng et al., as modified by the Chen Abstract and Xu et al., would not develop drug resistance because Xu et al. teach that the pesticide comprising azadirachtin and tea saponin have no easy drug resistance caused by the pesticide.
Applicant argues Yang provides an agricultural ecological method for preventing and controlling citrus huanglongbing while harvesting organic citrus. Applicant argues the technical solutions of Yang differ significantly from Peng, and the effect of Yang is achieved by an interaction of the overall technical solution. Applicant argues that Yang also states that “a large number of facts have proven that relying solely on the spraying pesticides to control psylla is ineffective and cannot effectively control the rapid spread of Huanglongbing and that there is no motivation to apply a single component disclosed in Yang, such as “biogenic pesticides” to D1. Applicant argues that Yang describes a method for controlling huanglongbing which use “metabolic photosynthesis promoter” and “biogenic pesticide” as different stage. Applicant argues that Yang does not teach a product containing “metabolic photosynthesis promoter” and “biogenic pesticide” for controlling huanglongbing, kill existing huanglongbing bacteria, and making the yellowed leaves regain vitality. In response to Applicant’s argument, Yang et al. teach an agro-ecological technique for preventing and controlling citrus Huanglongbing and simultaneously harvesting organic citrus, characterized in that (1) production cultivation: using bio-organic fertilizer, spraying metabolic photosynthetic accelerator and ionic liquid for improving anti-reverse force; 2) control of pests and diseases, weeds using biological pesticides and artificial and mechanical weeding. One of ordinary skill in the art would have been motivated to combine the teachings of Peng et al., the Chen Abstract, and Xu et al., modified by Yang et al. and add a plant nutrient such as an amino acid, because Yang et al. specifically teach an agro-ecological technique for preventing and controlling citrus Huanglongbing and simultaneously harvesting organic citrus, characterized in that (1) production cultivation: using bio-organic fertilizer, spraying metabolic photosynthetic accelerator and ionic liquid for improving anti-reverse force; 2) control of pests and diseases, weeds using biological pesticides and artificial and mechanical weeding. Yang et al. teach the “metabolic photosynthesis promoter” is a biological enzyme containing a complete rich nucleic acid, and amino acid, and a trace element and the “biological pesticide” adopts a biological source insecticide and biological source fungicide for plant-derived pesticides: the biological source insecticide is matrine, which is currently claimed in instant claim 5. It is well settled that in view of In re Kerkhoven, 205 USPQ 1069 (C.C.P.A. 1980), it is prima facie obvious to combine two or more compositions each of which is taught by prior art to be useful for the same purpose in order to form a third composition that is to be used for the very same purpose. The idea of combining them flows logically from their having been individually taught in prior art, thus claims that requires no more than mixing together two or three components that prevent or control Huanglongbing set forth prima facie obvious subject matter, without evidence to the contrary.
In response to Applicant argument that Yang does not teach a product containing “metabolic photosynthesis promoter” and “biogenic pesticide” for controlling huanglongbing, kill existing huanglongbing bacteria, and making the yellowed leaves regain vitality, the reason or motivation to modify a reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. While there must be motivation to make the claimed invention, there is no requirement that the prior art provide the same reason as the applicant to make the claimed invention.
Applicant argues that Chen discloses a vegetable insecticide and in particular relates to a citrus Huanglongbing insecticide, which has significantly different components from the present application and does not disclose the feature that “the bactericidal insecticide is a combination of tea saponin and azadirachtin with a weight ratio of the tea saponin and the azadirachtin being 10:1, and the plant nutrient is one or a combination of amino acid containing water-soluble fertilizer and a humic acid containing water-soluble fertilizer. In response to Applicant’s argument, based on the new rejection of record, Xu et al. teach a composition comprising azadirachtin and tea saponin with a preferred mass ratio of 1:10 provide a high efficiency, low toxicity, broad spectrum and no easy drug resistance caused by pesticide. As such, it would have been obvious to one of ordinary skill in the art that the composition taught by Peng et al., as modified by the Chen Abstract and Xu et al., would not develop drug resistance because Xu et al. teach that the pesticide comprising azadirachtin and tea saponin have no easy drug resistance caused by the pesticide.
Regarding Applicant’s argument related to the weight ratio of the tea saponin to the azadirachtin being 10:1, Xu et al. teach a pesticide composition including an effective quantity of natural source pesticide azadirachtin and natural surface active tea saponin, wherein the active ingredient namely tea saponin in the synergistic pesticide composition. Xu et al. teach the mass ratio of the azadirachtin to the tea saponin is most preferably 1:1 to 1:10. The Chen Abstract teaches that the citrus Huanglongbing insecticide comprising the following components in parts by weight: 15-35 parts tea saponin, 15-20 parts fulvic acid, and 15-25 parts of azadirachta indica and 100-200 parts water. 15-35 parts tea saponin and 15-25 parts azadirachta indica falls within the ranges of 1-100 parts and 10-50 parts, as claimed in claim 1. One of ordinary skill in the art would have been motivated to use the teachings of Xu et al. in the compositions of Peng et al., as modified by the Chen Abstract, to determine the weight ratio of the combination of the tea saponin and azadirachtin. Since Xu et al. teach that the preferred mass ratio of azadirachtin to the tea saponin is most preferably 1:10, one of ordinary skill in the art would have been motivated to use this teaching as a guide to form a synergistic formulation with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp.
Applicant indicates the beneficial technical effects of “cutting off the main transmission route of citrus huanglongbing, preventing the spread of huanglongbing, killing the pathogen of huanglongbing and restoring the vitality of diseased trees” and none of Peng, Yang and Chen provides corresponding technical guidance. In response to applicant's argument that the beneficial technical effects of “cutting off the main transmission route of citrus huanglongbing, preventing the spread of huanglongbing, killing the pathogen of huanglongbing and restoring the vitality of diseased trees”, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Applicant claims an emulsion in water for preventing and treating a yellow shoot of a citrus fruit tree, wherein it is composed of the following components according to the weight ratio: 100-300 parts of a dodecanol, 2-150 parts of a hexadecanol, 1-100 parts of a bactericidal insecticide, 5-150 parts of a plant nutrient, 5-10 parts of an emulsifier, 4-6 parts of a co-emulsifier, 40 parts of a thickener, and 500-800 parts of water; wherein the bactericidal insecticide is a combination of tea saponin and azadirachtin with a weight ratio of the tea saponin to the azadirachtin being 10:1, and the plant nutrient is one or a combination of an amino acid containing water-soluble fertilizer and a humic acid containing water-soluble fertilizer. The reason or motivation to modify a reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. While there must be motivation to make the claimed invention, there is no requirement that the prior art provide the same reason as the applicant to make the claimed invention.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
The claims remain rejected.
Conclusion
No claims are allowed.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Andriae M Holt whose telephone number is (571)272-9328. The examiner can normally be reached Monday-Friday, 8:00 am-4:30 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, Ali Soroush can be reached at 571-272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDRIAE M HOLT/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614