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 .
DETAILED ACTON
Status of 18/164,064
Claims 1, 6, 8-10, 12-13, and 18-26 are currently pending.
Priority
The instant application 18/164,064, filed 2/3/2023, claims priority as follows:
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The effective filing date of a claimed invention is determined on a claim-by-claim basis. See MPEP § 2152.01.
The provisional application 63/306,638 fails to provide support for anilinopyrimidines other than pyrimethanil. Therefore, claims 1, 6, 8-10, 12-13, and 18-26 which contain limitations drawn to this feature, are not entitled to the effective filing date of the priority document, and are thus granted the date of 2/3/2023.
Information Disclosure Statement
No Information Disclosure Statement has been filed as of 8/31/2026.
Oath/Declaration
No Oath/Declaration has been filed as of 8/31/2026.
Response to Arguments/Amendments
The amendment filed 7/28/2026 has been entered. Applicant has amended claims 6 and 13. No claims have been cancelled or added.
Claim 13 was rejected in the Non-Final dated 4/28/2026 under 35 U.S.C. 112(b). In response, Applicant has amended the claim to recite, “further comprising”, and has omitted the limitation ipflufenoquin from the claim, which overcomes the rejection. Thus, this rejection is withdrawn.
Claims 1, 9-10, 12-13, 18-19, and 20-23 were rejected under 35 U.S.C. 103 in the Non-Final dated 4/28/2026. In response, Applicant has amended claim 13 to omit the limitation “ipflufenoquin”, and further argues, with respect to claim 1, that the reference Nippon broadly discloses combinations of compounds with broad blending ratios, including 1:1,000,000 to 1,000,000:1 and a particularly preferred range of 1:10 to 10:1, that does not direct a person of ordinary skill to the claimed 1:4 to 1:8 ratio for the specific ipflufenoquin and pyrimethanil combination of the instant disclosure. Further, Applicant argues that the specification discloses superior result of an ipflufenoquin and pyrimethanil composition at a ratio of 1:6.7 on apple scab (Venturia inaequails), and thus the claimed 1:4 to 1:8 ratio of ipflufenoquin and pyrimethanil combination is allowable. The argument has been considered, but is not persuasive because the same table teaches that an ipflufenoquin and pyrimethanil composition at a ratio of 1:5 in the same assay does not demonstrate the same superior results:
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and the 1:5 ratio is included in the recited ratio in the instant claims. Thus, Applicant has provided conflicting data to support the 1:4 to 1:8 ratio of ipflufenoquin to pyrimethanil. In order to overcome this rejection, the limitation of “a weight ratio of the quinoline fungicide to the anilinopyrimidine fungicide from about 1:4 to about 1:8” needs to be narrowed to omit the 1:5 weight ratio. The rejection is not overcome, and the rejection is maintained. The claims rejected under 35 U.S.C. 103 have been updated in accordance with Applicants claim changes.
Further, Applicant’s amendments necessitated the new ground(s) of rejection presented in this Office Action.
Election/Restrictions
Applicant's election with traverse of Group I in the reply filed on 10/8/2024 is acknowledged. The traversal is on the grounds that the compounds and compositions of Group I and the methods of Group II would likely require overlapping searches and would not cause any undue burden to the Examiner in conducting the search. This is not found persuasive because the search queries required for Group I, and Group II, which require different CPC class searches, are in fact, different. See rationale within pages 2-3 of the previous Office Action.
Applicant’s species election with traverse of ipflufenoquin, as the quinoline fungicide, and pyrimethanil, as the anilinopyrimidine fungicide, in the reply filed on 10/8/2024 is acknowledged. Applicants’ traversal alleges that there is no serious search burden for a species election requirement. However, Examiner has cited the requisite search burden within pages 4-5 of the previous Office Action.
Examination will begin on the elected species. In accordance with MPEP § 803.02, if upon examination of the elected species, no prior art is found that would anticipate or render obvious the instant invention based on the elected species, the search of the Markush-type claim will be extended. If prior art is then found that anticipates or renders obvious the non-elected species, the Markush-type claim will be rejected. It should be noted that the prior art search will not be extended unnecessarily to cover all non-elected species. Should Applicant overcome the rejection by amending the claim, the amended claim will be examined again. The prior art search will be extended to the extent necessary to determine patentability of the Markush-type claim. In the event prior art is found during further examination that renders obvious or anticipates the amended Markush-type claim, the claim will be rejected and the action made final.
The elected species was searched and applicable prior art was identified. Claims 1, 9-10, 12-13, and 18-23 read on the elected species. Claims 6, 8, and 24-26 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected species, there being no allowable generic or linking claim.
MAINTAINED REJECTION
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.
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.
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, 9, 12, 18-19, and 21-23 are rejected under 35 U.S.C. 103 as being unpatentable over Nippon Soda Co., Ltd. (US 2020/0352168 A1, herein after referred to as “Nippon”).
Determining the scope and contents of the prior art
With respect to claim 1, Nippon teaches an agricultural and horticultural fungicide composition comprising at least one compound A, and at least one compound B (Claims 1 and 2). A specific example of compound A is ipflufenoquin, a quinoline fungicide, also defined as formula a-1 (Claim 2 and Specification, para [0026]):
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and pyrimethanil, an anilinopyrimidine fungicide, as compound B (Specification, paragraph [0032] and Table 4).
Regarding claims 9 and 19, Nippon teaches concentrations of ipflufenoquin in a fungicidal combination of 0.0063 ppm to 0.1 ppm (Specification, Table 4). Additionally, Nippon teaches that the concentration is a result effective variable (Specification, Table 4) and may vary from subject to subject.
With respect to claims 12 and 18, Nippon teaches Formulations 1-6 of compound A and compound B; specifically, Formulation 3 teaches a composition of compound A, compound B, and clay (Specification, para [0063]). In the instant application, kaolin clay, attapulgite clay, and acid white clay are disclosed as carriers as an example of agrochemically acceptable excipients in combination with ipflufenoquin and pyrimethanil (paragraph [0118]).
Regarding claim 21, Nippon teaches fungicidal compositions containing an agrochemically acceptable excipient concentration of 65 w/w% - 90 w/w% (Specification, paragraphs [0090]-[0100]).
With respect to claim 22-23, Nippon teaches ipflufenoquin and pyrimethanil as a dilute emulsion with an organic solvent, surfactant, and water (paragraphs [0080] and [0082], and Table 4). Such formulations would be capable of ready-mixing, or tank mixing.
Ascertaining the differences between the prior art and the claims at issue
Nippon fails to teach an anticipatory embodiment where the weight ratio of ipflufenoquin to pyrimethanil is about 1:4 to 1:8, ipflufenoquin is present in a concentration range of about 10 g/L to 100 g/L, ipflufenoquin comprises about 1% w/w to about 30% w/w of the fungicidal composition, and where the fungicidal composition comprises about 1% w/w to about 30% w/w of the agrochemically acceptable excipient of the total weight of the composition.
Resolving the level of ordinary skill in the pertinent art
The level of ordinary skill in the art is represented by an artisan who has sufficient background in the development of fungicidal combinations. Said artisan has also reviewed the problems in the art as regards to development of fungicidal combinations and understands the solutions that are widely known in the art.
Considering objective evidence present in the application indicating obviousness or nonobviousness
With respect to the concentration limitations of claims 1, 9, 19, and 21, it would have been prima facie obvious to one having ordinary skill in the art to arrive at the concentrations of ipflufenoquin and an agrochemically acceptable excipient recited in the instant claims because it is considered well within the capabilities of one of ordinary skill in the art to optimize the concentrations of individual ingredients of the formulation to provide optimal fungicidal combinations. The concentration of each individual ingredient in the formulation is a result effective parameter that will affect the physical properties of the final composition. The amount of a quinoline fungicide, in this case ipflufenoquin, in a composition is clearly a result effective parameter that a person of ordinary skill would routinely optimize. Optimization of parameters is a routine practice that would have been obvious for a person of ordinary skill in the art to employ and reasonably would expect success. Moreover, the ratios of fungicides and excipients, disclosed by Nippon above, provide a range of workable conditions and it would have been customary for an artisan of ordinary skill to determine the optimal ratios of fungicides and excipients to best achieve the desired result. Furthermore, absent any evidence demonstrating a patentable difference between the composition and the criticality of the claimed amounts, the determination of the optimum workable range(s) given the guidance of the prior art would have been generally prima facie obvious to the skilled artisan. See MPEP § 2144.05 [R-2](II) (A) and In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) “[W]here the general conditions of the claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.").
Claims 10 and 20 are rejected under 35 U.S.C. 103 as being unpatentable by Nippon Soda Co., Ltd. (US 2020/0352168 A1) in view of EPA (https://www3.epa.gov/pesticides/chem_search/ppls/002792-00081-20170213.pdf, accessed Nov. 6, 2024).
The instant claims are drawn to concentrations of pyrimethanil in a fungicidal combination of about 250 g/L to about 550 g/L and a w/w% of pyrimethanil in a fungicidal composition of about 10% to about 50%.
Determining the scope and contents of the prior art
The reference Nippon teaches as disclosed above, and at least those teachings are incorporated herein. Furthermore, Nippon teaches concentrations of pyrimethanil in a fungicidal combination of 0.4 ppm to 1.6 ppm (Specification, Table 4).
The reference EPA teaches a fungicidal combination of pyrimethanil in a concentration of 400 g/L and 37.3 w/w% (page 3, line 7).
Ascertaining the differences between the prior art and the claims at issue
Nippon fails to teach an embodiment where the concentration of pyrimethanil is about 250 g/L to about 550 g/L in the fungicidal combination, nor a w/w% of about 10% to about 50% of pyrimethanil the fungicidal composition. Conversely, the reference EPA fails to teach the presence of ipflufenoquin in the fungicidal composition.
Resolving the level of ordinary skill in the pertinent art
The level of ordinary skill in the art is represented by an artisan who has sufficient background in the development of fungicidal combinations. Said artisan has also reviewed the problems in the art as regards to development of fungicidal combinations and understands the solutions that are widely known in the art.
Considering objective evidence present in the application indicating obviousness or nonobviousness
Applying prong (B) of KSR, it would have been prima facie obvious to substitute the lower concentrations taught in Nippon with the higher concentrations taught by EPA to yield a predictable, improved result and arrive at the limitations of claims 10 and 20. The artisan would be motivated before the effective filing date of the claimed invention to substitute the concentration taught in Nippon with the higher concentrations taught by EPA to yield a predictable, improved result, because Nippon teaches that the concentration is a result effective variable and it would be well within the skill of an agricultural chemist to perform routine optimization to arrive at the claimed concentration and to provide optimal fungicidal combinations. The concentration of each individual ingredient in the formulation is a result effective parameter that will affect the physical properties of the final composition. The amount of an anilinopyrimidine fungicide, in this case pyrimethanil, in a composition is clearly a result effective parameter that a person of ordinary skill would routinely optimize. Optimization of parameters is a routine practice that would have been obvious for a person of ordinary skill in the art to employ and reasonably would expect success. Moreover, the ratios of fungicides disclosed by Nippon and EPA above, provide a range of workable conditions and it would have been customary for an artisan of ordinary skill to determine the optimal ratios of fungicides to best achieve the desired result. Furthermore, absent any evidence demonstrating a patentable difference between the composition and the criticality of the claimed amounts, the determination of the optimum workable range(s) given the guidance of the prior art would have been generally prima facie obvious to the skilled artisan. See MPEP § 2144.05 [R-2](II) (A) and In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) “[W]here the general conditions of the claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.").
NEW REJECTIONS NECESSITATED BY AMENDMENT
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.
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, 9, 12-13, 18-19, and 21-23 are rejected under 35 U.S.C. 103 as being unpatentable over Nippon Soda Co., Ltd. (US 2020/0352168 A1, herein after referred to as “Nippon”).
Determining the scope and contents of the prior art
The reference Nippon teaches as disclosed above, and at least those teachings are incorporated herein. With respect to claim 13, Nippon teaches that another fungicide may be present in the agricultural and horticultural fungicides already taught by Nippon (para [0040]), and further teaches quinoxyfen (para [0058]), proquinazid (para [0058]), and tebufloquin (para [0076]) as examples of these additional fungicides.
Ascertaining the differences between the prior art and the claims at issue
Nippon fails to teach an anticipatory fungicidal combination further comprising a quinoline selected from the group recited in claim 13.
Resolving the level of ordinary skill in the pertinent art
The level of ordinary skill in the art is represented by an artisan who has sufficient background in the development of fungicidal combinations. Said artisan has also reviewed the problems in the art as regards to development of fungicidal combinations and understands the solutions that are widely known in the art.
Considering objective evidence present in the application indicating obviousness or nonobviousness
Applying KSR prong (A), it would have been prima facie obvious to one of ordinary skill in the art to combine the additional fungicides of quinoxyfen, proquinazind, or tebufloquin, taught by Nippon to the present agricultural and horticultural fungicides already taught because Nippon teaches a small number of examples, and one of ordinary skill in the art would expect the combination to be successful. The artisan would be motivated before the effective filing date of the claimed invention to test combinations of compounds for the same purpose to improve fungicidal combinations, and would have readily predicted success in light of the teachings of Nippon.
Conclusion
Claims 1, 9-10, 12-13, and 18-23 are rejected. Claims 6, 8, and 24-26 are withdrawn.
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 Kendall Heitmeier whose telephone number is (703)756-1555. The examiner can normally be reached Monday-Friday 8:30AM-5:00PM ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clinton Brooks can be reached at 571-270-7682. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/K.N.H./Examiner, Art Unit 1621
/CLINTON A BROOKS/Supervisory Patent Examiner, Art Unit 1621
