DETAILED ACTION
Notice of Pre-AIA or AIA Status
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 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 04/07/2026 has been entered.
Claim Status
Applicant’s amendment of 04/07/2026 is acknowledged. Claim 16 is amended, and claims 1-15 and 25-33 are cancelled. Claims 16-24 are currently pending and are examined on the merits herein.
Priority
The instant application is a 371 of PCT/IB2021/058628 filed on 09/22/2021 and
claims foreign priority to IN202021041292 filed on 09/23/2020 as reflected in the filing
receipt dated on 10/12/2023. Receipt is acknowledged of certified copies of papers
required by 37 CFR 1.55.
Declaration Under 37 CFR 1.132
Dr. Rajiv Rathod provided a Declaration under 37 CFR 1.132, filed 04/07/2026. The Declaration meets the formal requirements. In the most relevant part, the Declaration presents the expert opinion of Dr. Rathod regarding the scientific reliability of the Colby equation and whether criticisms raised by Rummens and Richer apply to the patent examples at issue.
Hiteshkumar Anilkant Doshi provided a Declaration under 37 CFR 1.132, filed 04/07/2026. The Declaration meets the formal requirements. In the most relevant part, the Declaration attests that the behavior of pesticidal combinations is inherently unpredictable and presents the allegedly superior results of the combination of elemental sulphur and flupyradifurone in the treatment of aphids compared to treatment with individual actives.
A Declaration is due full consideration and weight for all that it discloses. Declarations are reviewed for the following considerations: 1) whether the Declaration presents a nexus such as a side-by-side or single-variable comparison (In re Huang, 40 USPQ2d 1685, 1689 (Fed. Cir. 1996)), 2) whether the Declaration presents a comparison to the closest art, 3) whether the Declaration is commensurate in scope with the scope of the claims (In re Kulling, 14 USPQ2d 1056, 1058 (Fed. Cir. 1990)), 4) whether the Declaration shows a difference in kind rather than merely a difference in degree (In re Waymouth, 182 USPQ 290, 293 (C.C.P.A. 1974)), and 5) whether the prima facie case is sufficiently strong that allegedly superior results are insufficient to overcome the case for obviousness (Pfizer Inc. v. Apotex, Inc., 82 USPQ2d 1321, 1339 (Fed. Cir. 2007)).
The Declarations under 37 CFR 1.132 filed 04/07/2026 are insufficient to overcome the rejection of claims 16-24 as set forth in the last Office action for the following reasons:
The relevant criteria here are No. 2 and 3, whether the Declarations present a comparison to the closest prior art and whether the Declarations are commensurate in scope of the claims.
The Examiner has carefully reviewed the Rathod Declaration, including the disclosed scientific basis of the Colby formula and ways in which the experimental design of the present application minimizes experimental variability and isolated observations. The Examiner has taken into consideration the expert opinion of Dr. Rathod when reviewing the experimental data presented in each Declaration as discussed herein. The data referenced in the Rathod Declaration, found in Applicant’s instant specification, show that the control of jassids and whiteflies resulting from the combination sulphur and flupyradifurone exceed the predicted additive values derived from the Colby equation.
The Examiner has carefully reviewed the Doshi Declaration, including the data presented in the Declaration. The data presented in the Doshi Declaration show that treatment of okra crop with 65% elemental sulphur and 10% flupyradifurone as water dispersible granules results in a percentage of aphid production higher as compared to expected reduction calculated using Colby’s formula.
However, the data discussed in either Declaration do not compare the performance of elemental sulphur and flupyradifurone as compared to the closest prior art combination of sulphur with another insecticide, for example the thiacloprid of Shah. Note: MPEP 716.02(e). An affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness. In re Burckel, 592 F.2d 1175, 201 USPQ 67 (CCPA 1979).
Further, the data which demonstrate the alleged superiority of the combination of sulphur and flupyradifurone is not commensurate in scope with the instant claims, which claim a pesticidal composition broadly covering all pests. Even across the pest species tested, the Examiner notes that different ratios of sulphur to flupyradifurone appear to be required to produce efficacies higher than that of the individual actives. For example, in the control of jassids, a much higher weight ratio of sulphur to flupyradifurone is used compared to that used in the control of whiteflies (Tables 1 and 2 of instant specification). However, the instant claims reflect that any combination of sulphur and flupyradifurone within the claimed ranges produces the same superior effect. If the ratio is changed, is the same performance observed? Thus, one of ordinary skill in the art would not expect all combinations of sulphur and flupyradifurone within the instantly claimed ranges to achieve the same level of pest reduction across all pests. Additionally, to establish unexpected results over a claimed range, Applicant should compare a sufficient number of tests both inside and outside the claimed ranges to show the criticality of the ranges. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). Note: MPEP 716.02. In the instant case, Applicant has only demonstrated combinations within the claimed range compared to individual actives.
Thus, the Declarations and results from the specification do not overcome the prior art rejections of record at this time because the results demonstrated are not compared to the closest prior art and are not commensurate in scope with the claims.
In view of the foregoing, when all of the evidence is considered, the totality of the rebuttal evidence of nonobviousness fails to outweigh the evidence of obviousness.
Withdrawn Objections and Rejections
he previous rejections under 35 U.S.C. 103 and on the grounds of nonstatutory double patenting are hereby withdrawn in favor of the new grounds of rejection presented herein. Applicant’s arguments insofar as they pertain to the new grounds of rejection are addressed herein.
Claim Objections
Claim 24 is objected to because of the following informalities:
Claim 24 recites several excipients which appear to be of the same scope and are, therefore, redundant. For example, “binders or binding agents”, “antifoaming agents or defoamers”, “suspending aid agents or suspension aid agents”, etc. The Examiner recommends amending the claim to remove duplicate excipients and to remove the conjunction “or” between excipients that are clearly of different scope. In Markush type language, a claim element is defined by selection from a group of alternatives and thus inherently encompasses “or”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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.
Claim 23 is 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 23 recites the limitations “macronutrients”, “micronutrients”, and “fertilizer”. However, the sulphur of independent claim 16 is a known fertilizer and plant nutrient, as evidenced by Shah et al. (WO2012101659A1, Page 1, lines 10-20; published: 08/02/2012; PTO-892 of instant action). Because nutrients are classified as either macronutrients or micronutrients, sulphur necessarily falls within one of these two claimed classes. The language of claim 23 is indefinite because it is not clear if the claimed fertilizer and/or macro- or micronutrients are in addition to sulphur or not. For the purposes of compact prosecution in the prior art rejections below, sulphur reads on the instant claim.
Further in claim 23, the limitations macronutrients, micronutrients, biostimulants, fertilizer, and algae fall within the scope of the recited plant growth regulators. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). With no limiting definition of the term “plant growth regulators” provided in Applicant’s instant disclosure, the claim is considered indefinite because it is not clear whether the term represents a group of chemicals distinct from the recited macronutrients, micronutrients, biostimulants, fertilizer, and algae or whether these recited limitations are merely exemplary of the broader recitation “plant growth regulators”.
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 16-19 and 22-24 are rejected under 35 U.S.C. 103 as being unpatentable over Shah et al. (WO2012101659A1; published: 08/02/2012; PTO-892 of instant action) in view of Nauen et al. (Pest Management Science, vol. 71, p. 850-862; published: 10/28/2014; PTO-892 of instant action) and CHEManager International (News, p. 1-12; published: 01/14/2020; PTO-892 of instant action).
Shah, throughout the reference, teaches a pesticidal composition comprising: an effective amount of sulphur; an effective amount of at least one insecticide or salt thereof; and at least one agrochemically acceptable excipient (Page 1, lines 1-10).
Shah acknowledges that pests are showing increased resistance to known pesticide compounds, thus requiring higher dosages to achieve the desired effect and thereby increasing costs and exposure hazards (Page 1, lines 20-35). Shah teaches that the combination of sulphur with known insecticide compounds, including thiacloprid, acetamiprid, clothianidin, thiamethoxam, and imidacloprid, demonstrates excellent efficacy against various sucking pests (Page 1, lines 35-38; Page 2, lines 1-25). The combination offers broad spectrum protection—as sulphur is a known pesticide, fungicide, and fertilizer—while lowering the required concentrations of active ingredients (Page 1, lines 10-20; Page 2, lines 1-25).
For example, treating crop plants with water dispersible granules comprising various combinations of 60%, 70%, and 75% sulphur with 15%, 7%, and 6% thiacloprid, respectively, proved advantageous in controlling pests, including jassids and aphids, for a longer period of time compared to much higher concentrations of either active alone (Pages 22-23, Table 5, Treatments 1-3 and 6-7).
Regarding claim 16: The amount of sulfur in the pesticidal compositions of Shah lies within and thus reads on the instantly claimed range, and the at least one agrochemically acceptable excipient reads on the same as instantly claimed.
Regarding claim 17: Shah teaches that when the composition is in the form of water dispersible granules, the average particle size is less than 50 microns (Page 7, lines 35-38 and Page 8, lines 1-10), which substantially overlaps and thus reads on the instantly claimed range.
Regarding claim 18: Shah teaches that water dispersible granules are a pesticide formulation consisting of granules to be applied after disintegration and dispersion in water (Page 3, lines 15-20). Therefore, before disintegration and dispersion in water, the composition is in the form of a solid, and after it is in the form of a liquid. While not required, the Examiner notes for the purposes of compact prosecution that Shah teaches its compositions may also be in the form of a gel (Claim 3).
Regarding claim 19: Because the water dispersible granules of Shah are intended to be both disintegrated and dispersed in water, they also meet the alternative limitation “water disintegrable granules”. While not required, the Examiner notes for the purposes of compact prosecution that Shah teaches its compositions may also be in the form of broadcast granules, wettable powders, and pellets (Claim 4), which under broadest reasonable interpretation read on the instantly claimed “spheronised granules”.
Regarding claim 22: Under broadest reasonable interpretation, disintegration and dispersion of the water dispersible granules of Shah in water reads on the instantly claimed liquid suspension. While not required, the Examiner notes for the purposes of compact prosecution that Shah teaches its compositions may also be in the form of a suspension concentrate (Claim 4). Shah defines as suspension concentrate as a suspension of solid pesticides in a fluid (Page 3, lines 21-22), which under broadest reasonable interpretation reads on the instantly claimed “flowable concentrate”.
Regarding claim 23: The sulphur in the compositions of Shah read on the instantly claimed active ingredient for the same reasons discussed in relation to the rejection of the claim under 112(b).
Regarding claim 24: Shah teaches that the at least one agrochemically acceptable excipient can comprise wetting agents, emulsifiers, binding agents, sticking agents, fillers, diluents, solvents, coating agents, and stabilizers (Page 6, lines 35-38). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the compositions of Shah by further including any of these excipients in order to achieve desired composition properties. Specifically, it would have been obvious to include a mixture of wetting agents, dispersing agents, emulsifiers, solvents, and fillers as the agrochemically acceptable excipients because Shah expressly teaches that these are required to form a dispersion of the granules in water (Page 7, lines 35-38 and Page 8, lines 1-10).
However, Shah does not expressly teach that the composition comprises flupyradifurone in the amount recited in instant claim 16.
Nauen teaches the use of flupyradifurone to combat insecticide resistance in sucking pests and to secure sustainable crop yields (Abstract; Page 859, R. Col.). Nauen further teaches that flupyradifurone acts on insect nicotinic acetylcholine receptors (nAChR)s in a similar way to other commercialized classes of insecticides, including neonicotinoids like thiacloprid, acetamiprid, clothianidin, thiamethoxam, and imidacloprid, and it also shows good systemic action once translocated through the xylem, which is the same pattern demonstrated by thiacloprid (Page 856, R. Col.; Page 860, R. Col.; Page 861, L. Col.; Fig. 7). Compared to thiacloprid, which is recognized by Nauen as a commercial standard, flupyradifurone provided the highest level of control against aphids across all measured periods from 2 to 15 days after application (Table 5).
CHEManager International teaches that as of April 30, 2020, thiacloprid is no longer authorized for use in the European Union due to human health and environmental safety concerns (Pages 2-3).
Regarding the flupyradifurone of claim 16: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the compositions of Shah by substituting the thiacloprid component with the flupyradifurone taught by Nauen. One of ordinary skill in the art would have been motivated to use flupyradifurone because Nauen teaches that flupyradifurone demonstrates a higher efficacy than thiacloprid against sucking pests and combats resistance to commercial insecticides, which is recognized by Shah as an acute problem. Additionally, Nauen teaches that flupyradifurone has an excellent toxicological and ecotoxicological safety profile, fulfilling modern regulatory requirements (Page 861, R. Col.; Table 2), whereas CHEManager International teaches that thiacloprid is no longer authorized as safe for use in the European Union.
Regarding the amount of flupyradifurone recited in claim 16: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to manipulate the amount of flupyradifurone within the range of 0.1 wt.% to 40 wt.% by weight of the total composition, which substantially overlaps the instantly claimed range, in order to achieve a desired level of insecticidal activity because Shah teaches that this amount of insecticide in combination with sulphur is highly effective in controlling sucking pests (Claim 2).
One of ordinary skill in the art would reasonably expect success in substituting one known insecticide for another because Nauen teaches that both flupyradifurone and thiacloprid display very similar modes of action and systemic properties. Further, Shah teaches that other insect nAChR-acting compounds, such as acetamiprid, clothianidin, thiamethoxam, and imidacloprid, also demonstrate improved efficacy against sucking pests when combined with sulphur. Therefore, one skilled in the art would reasonably expect that the combination of flupyradifurone and sulphur would produce a similarly enhanced control of pest populations for a longer period of time compared to the individual actives.
Claims 16-24 are rejected under 35 U.S.C. 103 as being unpatentable over Shah et al. (WO2012101659A1; published: 08/02/2012; PTO-892 of instant action) in view of Nauen et al. (Pest Management Science, vol. 71, p. 850-862; published: 10/28/2014; PTO-892 of instant action) and CHEManager International (News, p. 1-12; published: 01/14/2020; PTO-892 of instant action), as applied to claims 16-19 and 22-24 above, and further in view of Vadakekuttu (US20180325105A1; 11/15/2018; IDS of 03/23/2023).
The combination of Shah, Nauen, and CHEManager International teaches the invention(s) of claims 16-19 and 22-24 as discussed in detail above and further incorporated herein.
As discussed above, the pesticide compositions taught by the combination of Shah, Nuaen, and CHEManager read on the instantly claimed water dispersible granules and water disintegrable granules. However, the prior art combination does not expressly teach the granule sizes recited in claims 20 and 21.
Vadakekuttu teaches that there is a need to ensure that crop nutrients, algae, or pesticidal actives are available to the plant instantly and continuously during the growth stages in the crop lifecycle (Paragraph 0014). Thus, an agricultural water disintegrable granular composition including at least one agrochemical active and at least one agrochemically acceptable excipient should comprise granules in a size range of 0.1 mm to 6 mm and particles in the size range of 0.1 micron to 50 microns (Paragraph 0016). Such compositions demonstrate good physical properties of disintegration, dispersion, and suspension, and good release properties for the entire crop life cycle (Paragraph 0016). In some exemplary embodiments (Table 3, Samples I-III), the granules comprise 50-70% sulphur, among other ingredients. Vadakekuttu teaches the use of several other suitable pesticidal actives, including flupyradifurone (Paragraph 0065).
Regarding claims 20 and 21: While the combination of Shah, Nuaen, and CHEManager is silent as to the size of the granules, it would have been obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention to adjust the granule size within the range taught by Vadakekuttu, which lies within the range recited in instant claim 20 and overlaps the range recited in instant claim 21, since the reference teaches that any size between 0.1 mm to 6 mm is suitable for forming water disintegrable granules with good dispersion, suspension, and release properties.
One of ordinary skill in the art would reasonably expect success in modifying the compositions taught by the combination of Shah, Nuaen, and CHEManager with the teachings of Vadakekuttu as proposed because the properties taught by Vadakekuttu are suitable for compositions having the same particle sizes and comprising the same actives, including similar amounts of sulphur, as the compositions taught by the combination of Shah, Nuaen, and CHEManager.
Response to Arguments
Applicant’s arguments submitted on 04/07/2026 with respect to rejections under 35 U.S.C. 103 have been fully considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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 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); 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 nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 16-24 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 20-36 of copending Application No. 18/689,375 in view of Vadakekuttu (US20180325105A1; 11/15/2018; IDS of 03/23/2023).
App. ‘375 claim 20 recites a pesticidal composition comprising: elemental sulphur in a range of 20% w/w to 90% w/w of a total composition; acynonapyr in a range of 0.1% w/w to 50% w/w of the total composition; and at least one agrochemically acceptable excipient. The elemental sulphur and agrochemically acceptable excipient read on the same recited in instant claim 16, and the amount of sulphur substantially overlaps and thus renders obvious the instantly claimed range. App. ‘375 claim 21 recites that the composition comprises particles in a size range of 0.1 micron to 50 microns, which reads on instant claim 17. App. ‘375 claim 22 recites that the composition is in a form of a solid or form of a liquid or form of a gel, which reads on instant claim 18. App. ‘375 claim 23 recites that the composition in the form of a solid is in a form of: water dispersible granules, water disintegrable granules, broadcast granules, spheronised granules, or wettable powder, among others, which reads on all forms recited in instant claim 19. App. ‘375 claim 24 recites that the water disintegrable granules, broadcast granules, or spheronised granules are in a size range of 0.1 mm to 6 mm, which reads on instant claim 20. App. ‘375 claim 25 recites that the water dispersible granules are in a size range of 0.1 mm to 2.5 mm, which reads on instant claim 21. App. ‘375 claim 26 recites that the composition in the form of a liquid is in a form of flowable concentrate or liquid suspension, among others, which reads on instant claim 22. App. ‘375 claim 27 recites that the composition further comprises at least one active ingredient selected from those recited in instant claim 23. App. ‘375 claim 28 recites that the at least one agrochemically acceptable excipient is selected from those recited in instant claim 24.
The claims of App. ‘375 differ from the instant claims in that the claims of App. ‘375 recite that the composition comprises acynonapyr rather than flupyradifurone.
The teachings of Vadakekuttu are as set forth above.
Vadakekuttu further teaches acynonapyr as an alternative pesticidal active (Paragraph 0065).
Regarding instant claim 16, it would have been obvious to one of ordinary skill in the art to substitute the acynonapyr of the composition recited in the claims of App. ‘375 with flupyradifurone, an alternative pesticidal active taught by Vadakekuttu, according to known methods to yield the predictable result of a pesticidal composition for treating at least one of a plant, crop, plant propagation material, locus or parts thereof, seed, seedling, or soil.
Regarding the amount of flupyradifurone recited in instant claim 16, it would have been obvious to one of ordinary skill in the art to manipulate the concentration of flupyradifurone within the range of 0.1% w/w to 50% w/w of the total composition, which overlaps and thus renders obvious the instantly claimed range, in order to achieve a desired level of pesticidal activity because App. ‘375 claims teach that this amount of pesticidal active is useful in combination with sulphur.
One of ordinary skill in the art would reasonably expect success in modifying the composition recited in the claims of App. ‘375 using the teachings of Vadakekuttu because the reference teaches beneficial considerations in producing effective pesticide compositions.
This is a provisional nonstatutory double patenting rejection.
Claims 16-24 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 24-35 and 40-46 of copending Application No. 18/568,735 in view of Vadakekuttu (US20180325105A1; 11/15/2018; IDS of 03/23/2023).
App. ‘735 claim 24 recites a pesticidal composition comprising: elemental sulphur in a range of 20% w/w to 90% w/w of the pesticidal composition; fluensulfone or salts or derivatives or mixtures thereof in a range of 0.1% w/w to 30% w/w of the pesticidal composition; and at least one agrochemically acceptable excipient. The elemental sulphur and agrochemically acceptable excipient read on the same recited in instant claim 16, and the amount of sulphur substantially overlaps and thus renders obvious the instantly claimed range. App. ‘735 claim 25 recites that the composition is in a form of a solid or form of a liquid or form of a gel, which reads on instant claim 18. App. ‘735 claim 26 recites that the composition in the form of a solid is in a form of: wettable powders or water dispersible granules, among others, which reads on all forms recited in instant claim 19. App. ‘735 claim 27 recites that the composition is in the form of a solid. App. ‘735 claim 28 recites that the composition in the form of a liquid is in a form of flowable concentrate or liquid suspension, among others, which reads on instant claim 22. App. ‘735 claim 29 further limits the amount of elemental sulphur to the range of 20% w/w to 60% w/w of the pesticidal composition, which lies within and thus reads on the instantly claimed range, and the amount of fluensulfone or salts or derivatives or mixtures thereof to the range of 0.1 w/w to 15% w/w of the composition. App. ‘735 claim 30 recites that solid form of the composition is in the form of water dispersible granules in a size range from 0.1 mm to 3 mm, which overlaps the range recited in instant claim 21 with sufficient specificity to anticipate the range. Note: MPEP 2131.03(II). App. ‘735 claim 31 recites that the composition comprises particles in a size range of 0.1 micron to 30 microns, which reads on instant claim 17. App. ‘735 claim 32 recites that the composition further comprises at least one active ingredient selected from those recited in instant claim 23. App. ‘735 claim 33 recites that the at least one agrochemically acceptable excipient is selected from those recited in instant claim 24.
The claims of App. ‘735 differ from the instant claims in that the claims of App. ‘735 recite that the composition comprises fluensulfone or salts or derivatives or mixtures thereof rather than flupyradifurone.
The teachings of Vadakekuttu are as set forth above.
Vadakekuttu further teaches fluensulfone as an alternative pesticidal active (Paragraph 0065).
Regarding instant claim 16, it would have been obvious to one of ordinary skill in the art to substitute the fluensulfone of the composition recited in the claims of App. ‘735 with flupyradifurone, an alternative pesticidal active taught by Vadakekuttu, according to known methods to yield the predictable result of a pesticidal composition for treating at least one of a plant, crop, plant propagation material, locus or parts thereof, seed, seedling, or soil.
Regarding the amount of flupyradifurone recited in instant claim 16, it would have been obvious to one of ordinary skill in the art to manipulate the amount of flupyradifurone within the range of 0.1% w/w to 30% w/w of the total composition, which overlaps and thus renders obvious the instantly claimed range, in order to achieve a desired level of pesticidal activity because App. ‘735 claims teach that this amount of pesticidal active is useful in combination with sulphur.
One of ordinary skill in the art would reasonably expect success in modifying the composition recited in the claims of App. ‘735 using the teachings of Vadakekuttu because the reference teaches beneficial considerations in producing effective pesticide compositions.
This is a provisional nonstatutory double patenting rejection.
Claims 16-24 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 22-42 of copending Application No. 18/259,035 in view of Vadakekuttu (US20180325105A1; 11/15/2018; IDS of 03/23/2023) and Shah et al. (WO2012101659A1; published: 08/02/2012; PTO-892 of instant action).
App. ‘035 claim 22 recites a solid bio-pesticidal composition comprising a blend of: elemental sulphur in a range of 60% w/w to 99% w/w of a total composition, azadirachtin in a range of 0.05% w/w to 20% w/w of the total composition, and at least one agrochemically acceptable excipient, wherein the composition is in a form of water dispersible granules, broadcast granules, or spheronised granules, among others, and wherein the composition comprises particles in a size range from 0.1 to 60 microns. The elemental sulphur and agrochemically acceptable excipient read on the same of instant claim 16, and the amount of sulphur overlaps and thus renders obvious the range recited in instant claim 16. The composition forms read on the solid form of instant claim 18 and the granular forms recited in instant claim 19. App. ‘035 claim 23 recites that the particle sizes are in the range from 0.1 micron to 20 micron, which lies within and thus anticipates the range recited in instant claim 17. App. ‘035 claims 24 and 25 recite that the granules are in a size range of 0.05 mm to 6 mm and 0.5 mm to 2.5 mm, respectively, which overlap the ranges recited in instant claims 20 and 21 with sufficient specificity to anticipate the ranges. Note: MPEP 2131.03(II). App. ‘035 claim 26 recites that the at least one agrochemically acceptable excipient is selected from those recited in instant claim 24, and claim 27 further limits the composition to comprise at least one of surfactant or carrier or binder, which also reads on instant claim 24.
The claims of App. ‘035 differ from the instant claims in that the claims of App. ‘035 recite that the composition comprises azadirachtin rather than flupyradifurone. Further, the claims of App. ‘035 do not recite the limitations of instant claim 22.
The teachings of Vadakekuttu and Shah are as set forth above.
Vadakekuttu further teaches azadirachtin as an alternative pesticidal active (Paragraph 0065).
Regarding instant claim 16, it would have been obvious to one of ordinary skill in the art to substitute the azadirachtin of the claims of App. ‘035 with flupyradifurone, an alternative pesticidal active taught by Vadakekuttu, according to known methods to yield the predictable result of a pesticidal composition for treating at least one of a plant, crop, plant propagation material, locus or parts thereof, seed, seedling, or soil.
Regarding the amount of flupyradifurone recited in instant claim 16, it would have been obvious to one of ordinary skill in the art to manipulate the concentration of flupyradifurone within the range of 0.05% w/w to 20% w/w of the total composition, which overlaps and thus renders obvious the instantly claimed range, in order to achieve a desired level of pesticidal activity because App. ‘035 claims teach that this amount of pesticidal active is useful in combination with sulphur.
Regarding instant claim 22, it would have been obvious to one of ordinary skill in the art to formulate the composition taught by the combination of App. ‘035 claims and Vadakekuttu as a suspension concentrate (i.e., liquid suspension) depending on the desired method of application because Shah teaches both water dispersible granules and suspension concentrates are suitable forms of agricultural compositions comprising sulphur, an insecticide, and an agrochemically acceptable excipient.
One of ordinary skill in the art would reasonably expect success in modifying the composition recited in the claims of App. ‘035 using the teachings of Vadakekuttu and Shah because both references teach beneficial considerations in producing effective pesticide compositions.
This is a provisional nonstatutory double patenting rejection.
Claims 16-24 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 18, 20-1, 23-26, and 31-36 of copending Application No. 18/022,068 in view of Vadakekuttu (US20180325105A1; 11/15/2018; IDS of 03/23/2023).
The claims of App. ‘068 recite all limitations of instant claims 16-24 but differ in that the claims of App. ‘068 recite that the composition comprises choline salt of pelargonic acid rather than flupyradifurone.
The teachings of Vadakekuttu are as set forth above.
Vadakekuttu further teaches pelargonic acid or salts, derivatives, or mixtures thereof as alternative pesticidal actives (Paragraph 0065).
Regarding instant claim 16, it would have been obvious to one of ordinary skill in the art to substitute the choline salt of pelargonic acid of the claims of App. ‘068 with flupyradifurone, an alternative pesticidal active taught by Vadakekuttu, according to known methods to yield the predictable result of a pesticidal composition for treating at least one of a plant, crop, plant propagation material, locus or parts thereof, seed, seedling, or soil.
Regarding the amount of flupyradifurone recited in instant claim 16, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to manipulate the concentration of flupyradifurone within the range of 0.01% w/w to 50% w/w of the total composition, which overlaps and thus renders obvious the instantly claimed range, in order to achieve a desired level of pesticidal activity because App. ‘068 claims teach that this amount of pesticidal active is useful in combination with sulphur.
One of ordinary skill in the art would reasonably expect success in modifying the composition recited in the claims of App. ‘068 using the teachings of Vadakekuttu because the reference teaches beneficial considerations in producing effective pesticide compositions.
This is a provisional nonstatutory double patenting rejection.
Claims 16-24 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 22-30 and 37-42 of copending Application No. 18/682,831 in view of Vadakekuttu (US20180325105A1; 11/15/2018; IDS of 03/23/2023).
The claims of App. ‘831 recite all limitations of instant claims 16-24 but differ in that the claims of App. ‘831 recite that the composition comprises fluxapyroxad and prothioconazole rather than flupyradifurone.
The teachings of Vadakekuttu are as set forth above.
Vadakekuttu further teaches fluxapyroxad and prothioconazole as alternative pesticidal actives (Paragraph 0065).
Regarding instant claim 16, it would have been obvious to one of ordinary skill in the art to substitute the fluxapyroxad and the prothioconazole of the claims of App. ‘831 with flupyradifurone, an alternative pesticidal active taught by Vadakekuttu, according to known methods to yield the predictable result of a pesticidal composition for treating at least one of a plant, crop, plant propagation material, locus or parts thereof, seed, seedling, or soil.
Regarding the amount of flupyradifurone recited in instant claim 16, it would have been obvious to one of ordinary skill in the art to manipulate the concentration of flupyradifurone within the range of 0.01% w/w to 45% w/w of the total composition, which overlaps and thus renders obvious the instantly claimed range, in order to achieve a desired level of pesticidal activity because App. ‘831 claims teach that this amount of pesticidal active is useful in combination with sulphur.
One of ordinary skill in the art would reasonably expect success in modifying the composition recited in the claims of App. ‘831 using the teachings of Vadakekuttu because the reference teaches beneficial considerations in producing effective pesticide compositions.
This is a provisional nonstatutory double patenting rejection.
Response to Arguments
Applicant’s request in the Remarks filed 04/07/2026 for the double patenting rejections of record to be held in abeyance is acknowledged. However, this request to hold a rejection in abeyance is not a proper response to a rejection. Rather, a request to hold a matter in abeyance may only be made in response to an objection or requirements as to form (see MPEP 37 CFR 1.111(b) and 714.02). Accordingly, the rejections will be maintained until a terminal disclaimer is filed or claims are amended to obviate the rejections.
Conclusion
No claim is allowed.
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/SARAH C WISTNER/Examiner, Art Unit 1616
/Mina Haghighatian/Primary Examiner, Art Unit 1616
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