DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Withdrawn Claim Rejections
The rejections of claims 1, 3-8 and 13-15 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inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention are hereby withdrawn in view of the claim amendments filed on 9/22/25.
The rejections of:
claims 1 and 3-5 under 35 U.S.C. 103(a) as being unpatentable over Fujita et al (JPH 06279570A; published: 10/4/94), in view of Seitz et al. (US 2004/0137031; published: 7/15/04);
Claims 7-8 and 13-14 rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Fujita et al (JPH 06279570A; published: 10/4/94) and Seitz et al. (US 2004/0137031; published: 7/15/04) as applied to claim 1 and 3-5 above, and further in view of Malaquin et al (WO 2009/112836; published: 9/17/09)
are hereby withdrawn in view of Applicant’s arguments filed on 9/22/25.
Maintained Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory obviousness-type double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 1, 3-5, 7-8 and 13-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over the following patented claims in view of Fujita et al (JPH 06279570A; of record):
Claims 1-19 of U.S. Patent No. 10,004,226;
Although the claims at issue are not identical, they are not patentably distinct from each other because require the dispersion composition comprising an aqueous liquid phase, a dispersed phase comprising a curable or polymerizable resin (e.g., epoxy) and at least one agrochemical active ingredient, wherein the polymer matrix particles that are formed comprise a colloidal solid material on the outside surface (e.g., ), wherein the dispersed phase can comprise at least one non-cross-linkable mobile chemical and at least one non-porous particulate material.
Claims 1-10 of U.S. Patent No. 11,013,231;
Although the claims at issue are not identical, they are not patentably distinct from each other because require the dispersion composition comprising an aqueous liquid phase, a dispersed phase comprising a curable or polymerizable thermoset epoxy resin (e.g., bisphenol A epoxy resin, phenolic resin, aminoplast resin, unsaturated polyester or vinylester resin) and at least one agrochemical active ingredient, wherein the curable or polymerizable thermoset epoxy comprises a cured epoxy resin polymer matrix prepared from curing an epoxy resin with an amine hardener, wherein the dispersed phase can comprise at least one non-cross-linkable mobile chemical and at least one non-porous particulate material.
Claims 1-19 of U.S. Patent No. 10,314,304 (Patent No. corrected by Applicant in the response filed on 5/2725);
Although the claims at issue are not identical, they are not patentably distinct from each other because require the aqueous liquid concentrate dispersion composition comprising an aqueous continuous phase, a dispersed phase comprising epoxy polymer matrix particles prepared from either a curable or polymerizable epoxy resin, wherein the outside surface of the polymer matrix particles comprise a colloidal solid material (e.g., a particulate inorganic material) and contain at least one agrochemical active ingredient dissolved within the epoxy polymer, wherein the dispersed phase can comprise at least one non-cross-linkable mobile chemical and at least one non-porous particulate material and wherein the epoxy polymer matrix are formed by curing an epoxy resin with an amine hardener.
Although patented ‘226, ‘231 and ‘304 claims are directed to the composition and the instant claims are directed to the method of making such composition, it would have been obvious to one of ordinary skill in the art to effect curing of the dispersed phase comprising the epoxy resin and the at least one agrochemically active agent by, for example, incorporation of amine hardener as such was previously already known; Fujita et al. teach making an aqueous suspension of spherical particles of a highly cured epoxy resin in a short time by reacting an uncured epoxy resin with a hardener in water and in the presence of a specific nonionic surfactant (Abstract). Fujita et al. teach that a known method for imparting stability to the aqueous emulsion (A) is hydroxyethylcellulose, carboxymethyl cellulose, polyvinyl alcohol and it is effective to add such substance having a protective colloid action such as polyvinylpyrrolidone and polyacrylamide (reads on colloidal solid emulsion stabilizer). Therefore, it would be obvious to one of ordinary skill in the art, at the time the invention was made, to make the copending compositions by any known method such as that taught by Fujita et al. to achieve the predictable result of obtaining the composition.
Response to Arguments
Applicants’ arguments have been fully considered, but are not found persuasive.
Applicants argue that the double patenting rejections rely on Fujita, which is defective for the reasons noted in the response to the 103 section (Remarks: p. 6). Such arguments included: (1) Fujita is not related to agricultural compositions (it refers to uses in industrial applications); and (2) a person of ordinary skill in the art would not be motivated to incorporate “at least one agrochemically active ingredient” based on the “microcapsule” of Seitz (Remarks: p. 5).
This is not found persuasive. In response to both arguments (1) and (2), the double patenting rejections do not rely on Fujita for anything agriculturally related. The instant and copending claims all require at least one agrochemical active ingredient and therefore a secondary reference was not needed to make that limitation obvious.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GENEVIEVE S ALLEY whose telephone number is (571)270-1111. The examiner can normally be reached Monday-Friday 8:00-5:00.
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/GENEVIEVE S ALLEY/ Primary Examiner, Art Unit 1617