SUBSTITUTED TOLYL FUNGICIDES

DETAILED ACTION Status of the Application The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Claims 11-13 are pending and represent all claims currently under consideration. 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 07/16/2026 has been entered. Response to Arguments Applicant's arguments filed 10/07/2025 have been fully considered but they are not persuasive. Applicant states that the rejection over Bereznak should no longer qualify as prior art upon recognition of the domestic benefit claim and correction of the filing receipt (Remarks, page 3). This argument is not persuasive, because the petition under 37 CFR 1.78(c) and (e) was dismissed without prejudice in the Petition Decision mailed 09/25/2026. Applicant states that neither the present application nor Taggi discloses or suggests that the amine intermediates possess fungicidal activity and that the amine compounds are treated as intermediates useful for preparing the final compounds, not as fungicides that would be expected to exhibit the biological activity of the final products. Applicant states that requiring comparative biological testing of the amine intermediates therefore imposes a requirement that is unsupported by the disclosures (Remarks, pages 4-5). This argument is not persuasive, because the compounds being claimed and the compounds taught by Taggi comprise the amine, and any unexpected results should therefore be drawn to the amine compounds, not the activity of a different structure which the claimed structure can be used to produce. Further, there is no teaching in Taggi disclosing Formula 1J as only an intermediate. Applicant states that the distinguishing feature of the evidence provided over Taggi is the 2,4,6-substituted phenyl ring, and that the methoxycarbonyl group is not a feature that distinguishes the compared compounds and cannot explain the demonstrated differences between them, and therefore that the comparison between the compounds as presented in the Declaration filed 10/07/2025 is proper (Remarks, page 5). This argument is not persuasive, because in addition to the difference of a methoxycarbonyl group in the data provided in the Declaration as compared to the claimed structures and the structures of Taggi, there is also a difference in the substituents of the phenyl rings. As stated in the rejection below, Taggi teaches a compound of formula 1J (Taggi, page 59, line 17), wherein R1 (i.e., the 2’ substituent or R1 as claimed) is F and R2 (i.e., the 4’ substituent or R6 as claimed) can be Cl, Me, i-propyl, or trifluoromethyl, (Taggi, page 55, table 1A), resulting in the structure as claimed with the exception of a F substituent at the 6’ (i.e., R2 as claimed) position of the phenyl ring. The data provided for compound numbers 63 and 57 include a 2’F and a 4’i-propyl, or a 2’Cl and a 4’Cl (which does not match the 2’ substituent as claimed), respectively, while the comparative data from Taggi includes a 2’F and 4’F for compound number 64, a 2’Cl and 4’Cl for compound number 84, and a 2’F and 4’Cl for compound number 65. Therefore, there is no direct comparison made between the compounds as claimed and the compounds of Taggi which have the same 2’ and 4’ substituents. Further, as stated by the Applicant, the amine compounds as claimed are not identified as fungicides that would themselves be expected to exhibit biological activity (Remarks, page 4), which therefore distinguishes the asserted comparative data from the amine-containing compound of Taggi. Applicant argues that Taggi’s reference to Phakopsora pachyrhizi is misplaced, because Taggi does not provide biological data against Asian soybean rust and does not disclose testing of the Formula 1J intermediates or related compounds, while the Declaration filed 10/07/2025 provides evidence demonstrating that compounds representative of Taggi exhibit substantially inferior activity (Remarks, page 6). This argument is not persuasive, because there is no teaching in Taggi disclosing Formula 1J as an intermediate, and while Taggi does not specifically teach the compound of Formula 1J has activity against Asian soybean rust, Taggi teaches the compositions of the invention, which would be reasonably expected to include compounds of Formula 1J, are useful as plant disease control agents to control diseases caused by fungal plant pathogens such as Phakopsora pachyrhizi (Taggi, page 131, lines 20-34), suggesting such activity would be expected. The burden is on the Applicant to establish results are unexpected and significant. See MPEP 716.02(b). Applicant states that the proposed combination of Taggi and Long is based on impermissible hindsight, because the mere fact that the references both disclose compounds containing a pyrazole ring does not provide a sufficient basis for combining their teachings, and that the two references are directed to substantially different classes of compounds (Remarks, pages 6-7). This argument is not persuasive, because it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, as previously stated, Taggi, Long, and the instant invention are all in the same field of pyrazole-containing fungicides. As for the assertion that the rejection is based on hindsight, as noted in MPEP 2145, any obviousness rejection is in a sense necessarily a reconstruction based on hindsight reasoning and is not improper if it takes into account only knowledge within the level of ordinary skill in the art at the time the claimed invention was made. Applicants have provided no evidence that the rejection is not based on knowledge available to those of ordinary skill in the art. Applicant states that Taggi’s teaching that one skilled in the art will recognize that compounds of Formula 1 and intermediates can be subjected to various reactions to add substituents (Taggi, page 39, lines 8-11) is taken out of context. Applicant states that this teaching simply recognizes that routine synthetic methods may be used to prepare compounds encompassed by Taggi’s formula 1 and associated intermediates, and does not suggest expanding Taggi’s disclosed compounds to include additional substituents (Remarks, pages 7-8). This argument is not persuasive, because Taggi states the compounds of Formula 1 can be subjected to various reactions to add substituents or modify existing substituents (Taggi, page 39, lines 8-11), which clearly suggests adding additional substituents. Applicant states that Long merely references Phakopsora pachyrhizi, and does not provide biological data, and further does not demonstrate any particular benefit that a 2,4,6-sustituted phenyl ring imparts any particular benefit (Remarks, page 8). This argument is not persuasive, because as previously stated Taggi and Long both teach compounds which are effective toward Phakopsora pachyrhizi (Taggi, page 131, line 29; page 132; Long, page 96, lines 11-12). Further, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the structure of Taggi to include a 6’ F substituent as taught by Long, because Taggi teaches one skilled in the art would recognize to add substituents to the shown structure (Taggi, page 39, lines 8-11) and Long teaches a 2,4,6 substituted phenyl group “Q1” attached to a pyrazole as claimed and a 2,4,6 substituted phenyl group “Q1” attached to a pyrazole as taught by Taggi are known alternatives (Long, claim 5). It is obvious to substitute equivalents known for the same purpose. See MPEP 2144.06(II). Priority This application makes reference to or appears to claim subject matter disclosed in Application No. 17/291,631, filed 11/05/2019. If applicant desires to claim the benefit of a prior-filed application under 35 U.S.C. 119(e), 120, 121, 365(c) or 386(c), the instant application must contain, or be amended to contain, a specific reference to the prior-filed application in compliance with 37 CFR 1.78. If the application was filed before September 16, 2012, the specific reference must be included in the first sentence(s) of the specification following the title or in an application data sheet (ADS) in compliance with pre-AIA 37 CFR 1.76; if the application was filed on or after September 16, 2012, the specific reference must be included in an ADS in compliance with 37 CFR 1.76. For benefit claims under 35 U.S.C. 120, 121, 365(c), or 386(c), the reference must include the relationship (i.e., continuation, divisional, or continuation-in-part) of the applications. If the instant application is a utility or plant application filed under 35 U.S.C. 111(a), the specific reference must be submitted during the pendency of the application and within the later of four months from the actual filing date of the application or sixteen months from the filing date of the prior application. If the application is a national stage application under 35 U.S.C. 371, the specific reference must be submitted during the pendency of the application and within the later of four months from the date on which the national stage commenced under 35 U.S.C. 371(b) or (f), four months from the date of the initial submission under 35 U.S.C. 371 to enter the national stage, or sixteen months from the filing date of the prior application. See 37 CFR 1.78(a)(4) for benefit claims under 35 U.S.C. 119(e) and 37 CFR 1.78(d)(3) for benefit claims under 35 U.S.C. 120, 121, 365(c), or 386(c). This time period is not extendable and a failure to submit the reference required by 35 U.S.C. 119(e) and/or 120, where applicable, within this time period is considered a waiver of any benefit of such prior application(s) under 35 U.S.C. 119(e), 120, 121, 365(c), and 386(c). A benefit claim filed after the required time period may be accepted if it is accompanied by a grantable petition to accept an unintentionally delayed benefit claim under 35 U.S.C. 119(e) (see 37 CFR 1.78(c)) or under 35 U.S.C. 120, 121, 365(c), or 386(c) (see 37 CFR 1.78(e)). The petition must be accompanied by (1) the reference required by 35 U.S.C. 120 or 119(e) and by 37 CFR 1.78 to the prior application (unless previously submitted), (2) the applicable petition fee under 37 CFR 1.17(m)(1) or (2), and (3) a statement that the entire delay between the date the benefit claim was due under 37 CFR 1.78 and the date the claim was filed was unintentional. The presentation of a benefit claim may result in an additional fee under 37 CFR 1.17(w)(1) or (2) being required, if the earliest filing date for which benefit is claimed under 35 U.S.C. 120, 121, 365(c), or 386(c) and 1.78(d) in the application is more than six years before the actual filing date of the application. The Director may require additional information where there is a question whether the delay was unintentional. The petition should be addressed to: Mail Stop Petition, Commissioner for Patents, P.O. Box 1450, Alexandria, Virginia 22313-1450. If the reference to the prior application was previously submitted within the time period set forth in 37 CFR 1.78 but was not included in the location in the application required by the rule (e.g., if the reference was submitted in an oath or declaration or the application transmittal letter), and the information concerning the benefit claim was recognized by the Office as shown by its inclusion on the first filing receipt, the petition under 37 CFR 1.78 and the petition fee under 37 CFR 1.17(m)(1) or (2) are not required. Applicant is still required to submit the reference in compliance with 37 CFR 1.78 by filing an ADS in compliance with 37 CFR 1.76 with the reference (or, if the application was filed before September 16, 2012, by filing either an amendment to the first sentence(s) of the specification or an ADS in compliance with pre-AIA 37 CFR 1.76). See MPEP § 211.02. Claims 11-13 are considered to have an effective filing date of 03/28/2023. Modified/Maintained 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 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Bereznak (WO 2020097012 A1). The reference was cited previously by the Examiner. Regarding claim 11, Bereznak teaches a compound of formula 11 below (Bereznak, page 32, scheme 8). Bereznak teaches Q is CR6 (Bereznak, claim 2), A is of formula A-1 below (Bereznak, claim 3), Y can be CR7aR7b (Bereznak, claim 1), R1 and R2 can each be F, R3 can be H, n is 0, R6 can be Cl, methyl, i-propyl, or trifluoromethyl, R7a is H, R7b is H (Bereznak, claim 3). Bereznak further defines A-1 to specify the bond extending to the right is attached to the ring containing Q and the bond extending to the left is attached to the phenyl ring (Bereznak, claim 1), resulting in the structure as claimed. Formula 11: PNG media_image1.png 125 264 media_image1.png Greyscale Formula A-1: PNG media_image2.png 128 108 media_image2.png Greyscale Bereznak is considered to be analogous to the claimed invention, because both Bereznak and the instant invention are in the same field of substituted tolyl fungicides. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have arrived at the claimed invention based on the teachings of Bereznak under the meaning of 35 U.S.C. 103. Regarding claim 12, Bereznak teaches all the elements of the current invention as applied to claim 11. As above, Bereznak teaches R6 can be i-propyl (Bereznak, claim 3). Regarding claim 13, Bereznak teaches all the elements of the current invention as applied to claim 11. As above, Bereznak teaches R6 can be trifluoromethyl (Bereznak, claim 3). Claims 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Taggi (WO 2015157005 A1; IDS reference, 03/28/2023), further in view of Long (WO 2010101973 A1). The references were cited previously by the Examiner. Regarding claim 11, Taggi teaches a compound of formula 1J below (Taggi, page 59, line 17), wherein R1 (i.e., the 2’ substituent or R1 as claimed) is F and R2 (i.e., the 4’ substituent or R6 as claimed) can be Cl, Me, i-propyl, or trifluoromethyl, (Taggi, page 55, table 1A), resulting in the structure as claimed with the exception of a F substituent at the 6’ (i.e., R2 as claimed) position of the phenyl ring. Formula 1J: PNG media_image3.png 101 280 media_image3.png Greyscale Taggi further teaches that one skilled in the art will recognize that compounds of Formula 1 and intermediates can be subjected to various reactions to add substituents (Taggi, page 39, lines 8-11). Long teaches a fungicidal pyrazole compound comprising a phenyl ring with 2’ and 6’ F substituents and a 4’ Cl substituent (Long, page 67, table 25), resulting in the phenyl ring substituted as claimed. Taggi and Long are considered to be analogous to the claimed invention, because Taggi, Long, and the instant invention are in the same field of pyrazole-containing fungicides. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the structure of Taggi to include a 6’ F substituent as taught by Long, because Taggi teaches one skilled in the art would recognize to add substituents to the shown structure (Taggi, page 39, lines 8-11) and Long teaches a 2,4,6 substituted phenyl group “Q1” attached to a pyrazole as claimed and a 2,4,6 substituted phenyl group “Q1” attached to a pyrazole as taught by Taggi are known alternatives (Long, claim 5). It is obvious to substitute equivalents known for the same purpose. See MPEP 2144.06(II). Regarding claim 12, Taggi and Long together teach all the elements of the current invention as applied to claim 11. As above, Taggi teaches R2 (i.e., the 4’ substituent or R6 as claimed) can be i-propyl (Taggi, page 55, table 1A). Regarding claim 13, Taggi and Long together teach all the elements of the current invention as applied to claim 11. As above, Taggi teaches R2 (i.e., the 4’ substituent or R6 as claimed) can be trifluoromethyl (Taggi, page 55, table 1A). Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHASITY P JANOSKO whose telephone number is (703)756-5307. The examiner can normally be reached 7:30-3:30 ET. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. 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If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /C.P.J./Examiner, Art Unit 1613 /JENNIFER A BERRIOS/ Primary Examiner, Art Unit 1613