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 1 and 3-13 are pending and represent all claims currently under consideration.
Claims 15-22 are withdrawn.
Response to Amendment
The amendment filed 09/11/2025 has been entered.
Claims 1, 3-13, and 15-16 were amended. Claims 2 and 14 were canceled. Claims 17-22 were added. No new material was added.
Applicant’s amendments have overcome the previous rejection of claim 1 under 35 U.S.C. 112(b) and objections to the claims.
The objections to the specification have been modified to address the amendments and maintained.
The rejections of claims 2 and 14 are moot, because the claims were canceled, and the rejection of claim 16 is moot, because the amended claim was withdrawn.
The rejections of claims 10-13 under 35 U.S.C. 112(b) have been modified to address the amendments and maintained.
The rejections of claims 1 and 3-13 under 35 U.S.C. 103 have been modified to address the amendments and maintained.
Response to Arguments
Applicant's arguments, see Remarks (page 9, 3rd paragraph), filed 09/11/2025, with respect to the rejection of claims 10-13 under 35 U.S.C. 112(b) have been fully considered but they are not persuasive. Applicant argues that the recitation of “the concentration range” in claims 10-14 has antecedent basis for being an inherent component of the capsule suspension concentrate. This argument is not persuasive, because it is unclear if “the concentration range” is intended to refer to an individual concentration of each listed component (e.g., a concentration of each adjuvant based on a weight of an adjuvant mixture) or a concentration of each listed component based on a total weight of a capsule suspension concentrate.
Applicant’s arguments, see Remarks (pages 10-12), filed 09/11/2025, with respect to the rejection(s) of claim(s) 1, 5-12, 14, and 16 under 35 U.S.C. 103 over Wolf have been fully considered and are persuasive in view of the claims as newly amended. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Wolf and Sakai.
Applicant argues that Sakai fails to teach anything related to agrochemical capsule suspension concentrate compositions and there is no reason one skilled in the art of developing agrochemical formulations would consider Sakai’s teachings to be relevant (Remarks, pages 12-13, item 1). This argument is not persuasive, because Wolf teaches microcapsules can be used in suspension concentrates for agrochemicals (Wolf, page 6, paragraph 0148) and Sakai teaches microcapsules are used in agrochemicals (Sakai, page 1, paragraph 0003). Therefore, Sakai’s teachings are also relevant to the current invention.
Applicant argues that there is no motivation to combine Wolf and Sakai (Remarks, pages 13-14, item 2). This argument is not persuasive, because Wolf teaches the composition may comprise as additives organic solvents which are exemplified as aromatic hydrocarbons (Wolf, page 3, paragraphs 0107-0109). Sakai teaches microcapsules comprising a dispersion medium which can be an aromatic hydrocarbon or trioctyl phosphate (i.e., tris(2-ethylhexyl)phosphate, or a trialkyl phosphate of Formula I, as evidenced by PubChem; Sakai, pages 3-4, paragraph 0052). Therefore, 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 substituted the organic solvent taught by Sakai, because Sakai teaches aromatic hydrocarbons and trioctyl phosphate as reasonable alternative organic solvents which can be used alone or together as a dispersing medium in microcapsules (Sakai, page 4, paragraph 0052).
Applicant argues that Sakai is non-analogous art and therefore cannot be relied upon for the purpose of an obviousness rejection (Remarks, pages 14-15, item 3). This argument is not persuasive, because the instant invention teaches a capsule suspension concentrate comprising a pyrethroid (claim 1) which can be used as an agrochemical formulation (instant specification, page 19, 7th paragraph), while Wolf teaches microcapsules can be used in suspension concentrates for agrochemicals (Wolf, page 6, paragraph 0148) and Sakai teaches microcapsules are used in agrochemicals (Sakai, page 1, paragraph 0003). Therefore, Wolf, Sakai, and the instant invention are all analogous art, because all teach capsule formulations that can be used as agrochemicals.
Election/Restrictions
Newly submitted claims 17-22 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: the groups lack unity of invention because even though the groups require the technical feature of a capsule suspension concentrate comprising a particulate disperse phase and an aqueous phase, this technical feature is not a special technical feature as it does not make a contribution over the prior art in view of Wolf (US 20050221991 A1; IDS reference, 03/15/2023), as stated previously and as demonstrated in the rejection below.
Since applicant has received an action on the merits for the elected invention, claims 17-22 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Applicant's election with traverse of Group I in the reply filed on 09/11/2025 is acknowledged. The traversal is on the ground(s) that the Group II claim is a process claim that refers back to or incorporates all the limitations of claim 1 (Group I). This is not found persuasive because there is not a special technical feature as the product of claim 1 does not make a contribution over the prior art in view of Wolf (US 20050221991 A1; IDS reference, 03/15/2023), as stated previously and as demonstrated in the rejection below. The amended claim 16 was changed to a process claim, and is therefore now a part of the non-elected Group II and withdrawn.
The requirement is still deemed proper and is therefore made FINAL.
Claims 15-22 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 09/11/2025.
Modified/Maintained Objections to the Specification
The use of the terms Geropon, Tersperse, Atlox Metasperse, Narlex, Versa, Agrilan, Alcoguard, Step Flow, Akzo Nobel, Oparyl, Huntsman, Lucramul, Ufoxane, Marasperse, Wafex, Borregaard, Kraftsperse, Reax, Polyfon, Ingevity, Aerosol, Solvay, Agnique, Supragil, Rhodacal, Oxiteno, Nansa, Innospec, Ninate, Stepan, Croda, Soprophor, Steol, Surfom, Genapol, Alkopon, Enviomet, Rhodapex, Dispersogen, Clariant, Empiphos, Elementis, Geronol, BASF, Emulsogen, Makon, Toximul, Ecosurf, Dow, Evonik, Tween, Bio-Soft, Break-Thru, Pluronic, Sokalan, Ashland, Triton, Silwet, Sipernat, Evonik, Covestro, Kuraray, Lanxess, Disflamoll, Hostapon, Atlas, Van Gel, Desmodur, Synperonic, Silcolapse, Preventol, Kathon, Lonza, Brenntag, Retsch, and Zeiss, which are trade names or marks used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Modified/Maintained 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 10-13 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.
Regarding claims 10-13, the claim recites the limitation "the concentration range". There is insufficient antecedent basis for this limitation in the claim. This limitation should read “a concentration range” throughout.
New 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 1 and 3-12 are rejected under 35 U.S.C. 103 as being unpatentable over Wolf (US 20050221991 A1; IDS reference, 03/15/2023), further in view of Sakai (US 20050179983 A1) and as evidenced by PubChem. The references were cited previously by the Examiner.
Regarding claim 1, Wolf teaches a microcapsule formulation comprising a particulate disperse phase comprising a capsule comprising a penetrant (i.e., an adjuvant) and a suspension phase comprising an agrochemical active compound and water (i.e., dispersed in an aqueous phase; Wolf, claim 6), and teaches the formulation is a suspension concentrate (Wolf, page 6, paragraph 0148). Wolf further teaches the coating of the microcapsule is produced by reacting one or more polyisocyanates with a diamine (Wolf, page 2, paragraph 0044) and further teaches the isocyanate can be hexane 1,6-diisocyante (i.e., a suitable isocyanate as defined by the instant specification, page 10, 2nd paragraph; Wolf, page 2, paragraph 0047) and the diamine can be diethylenetriamine (i.e., a preferred cross linker as defined by the instant specification, page 11, 9th paragraph; Wolf, page 2, paragraph 0052). Wolf teaches the agrochemical active compound can be acrinathrin (i.e., a pyrethroid listed in the instant claim 5; Wolf, page 4, paragraph 0114). Wolf teaches the composition may comprise as additives organic solvents which are exemplified as aromatic hydrocarbons (Wolf, page 3, paragraphs 0107-0109) and teaches penetrants (i.e., adjuvants) may include vegetable oils (Wolf, page 2, paragraph 0058), but does not teach a trialkyl phosphate according to Formula I. Sakai teaches microcapsules comprising agrochemicals (Sakai, page 1, paragraph 0003) and a dispersion medium which can be an aromatic hydrocarbon or trioctyl phosphate (i.e., tris(2-ethylhexyl)phosphate, or a trialkyl phosphate of Formula I, as evidenced by PubChem; Sakai, pages 3-4, paragraph 0052).
Wolf and Sakai are considered to be analogous to the claimed invention, because all are in the same field of agrochemical containing microcapsules. 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 capsule taught by Wolf to have included the alternative organic solvent taught by Sakai, because Wolf teaches the optional use of an organic solvent as an additive (Wolf, page 3, paragraph 0107) and Sakai teaches aromatic hydrocarbons and trioctyl phosphate as reasonable alternative organic solvents which can be used alone or together as a dispersing medium in microcapsules (Sakai, page 4, paragraph 0052).
Regarding claim 3, Wolf and Sakai together teach all the elements of the current invention as applied to claim 1. As above, Wolf teaches the composition may comprise as additives organic solvents which are exemplified as aromatic hydrocarbons (Wolf, page 3, paragraphs 0107-0109), but does not teach tris(2-ethylhexyl)phosphate. Sakai teaches microcapsules comprising agrochemicals (Sakai, page 1, paragraph 0003) and a dispersion medium which can be an aromatic hydrocarbon or trioctyl phosphate (i.e., tris(2-ethylhexyl)phosphate as evidenced by PubChem; Sakai, pages 3-4, paragraph 0052). 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 capsule taught by Wolf to have included the alternative organic solvent taught by Sakai, because Wolf teaches the optional use of an organic solvent as an additive (Wolf, page 3, paragraph 0107) and Sakai teaches aromatic hydrocarbons and trioctyl phosphate as reasonable alternative organic solvents which can be used alone or together as a dispersing medium in microcapsules (Sakai, page 4, paragraph 0052).
Regarding claim 4, Wolf and Sakai together teach all the elements of the current invention as applied to claim 1. Wolf teaches the composition may comprise as additives organic solvents which are exemplified as aromatic hydrocarbons (Wolf, page 3, paragraphs 0107-0109) and teaches penetrants (i.e., adjuvants) may include rapeseed oil methyl ester (Wolf, page 2, paragraph 0062), but does not teach tris(2-ethylhexyl)phosphate. Sakai teaches microcapsules comprising agrochemicals (Sakai, page 1, paragraph 0003) and a dispersion medium which can be an aromatic hydrocarbon or trioctyl phosphate (i.e., tris(2-ethylhexyl)phosphate as evidenced by PubChem; Sakai, pages 3-4, paragraph 0052). 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 capsule taught by Wolf to have included the alternative organic solvent taught by Sakai, because Wolf teaches the optional use of an organic solvent as an additive (Wolf, page 3, paragraph 0107) and Sakai teaches aromatic hydrocarbons and trioctyl phosphate as reasonable alternative organic solvents which can be used alone or together as a dispersing medium in microcapsules (Sakai, page 4, paragraph 0052).
Regarding claim 5, Wolf and Sakai together teach all the elements of the current invention as applied to claim 1. As above, Wolf teaches the agrochemical active compound can be acrinathrin (i.e., a pyrethroid from the claimed list; Wolf, page 4, paragraph 0114).
Regarding claim 6, Wolf and Sakai together teach all the elements of the current invention as applied to claim 1. Wolf teaches a suspension phase comprising an agrochemical active compound, additives, and water (i.e., the suspension phase is an aqueous phase; Wolf, claim 6). Wolf teaches one or more suitable additives can be present in the aqueous suspension including emulsifiers (Wolf, page 4, paragraph 0118).
Regarding claim 7, Wolf and Sakai together teach all the elements of the current invention as applied to claim 1. Wolf teaches a suspension phase comprising an agrochemical active compound, additives, and water (i.e., the suspension phase is an aqueous phase; Wolf, claim 6). Wolf teaches one or more suitable additives can be present in the aqueous suspension including emulsifiers, dispersants, and thickeners (i.e., rheology modifiers; Wolf, page 4, paragraph 0118).
Regarding claim 8, Wolf and Sakai together teach all the elements of the current invention as applied to claim 1. Wolf teaches a suspension phase comprising an agrochemical active compound, additives, and water (i.e., the suspension phase is an aqueous phase; Wolf, claim 6). Wolf teaches one or more suitable additives can be present in the aqueous suspension including emulsifiers, dispersants, antifoams, and thickeners (i.e., rheology modifiers; Wolf, page 4, paragraph 0118). Wolf further teaches the antifoam can be polydimethylsiloxane (alkylated siloxanes are wetting agents as defined by the instant specification, page 8, 7th paragraph; Wolf, page 5, paragraph 0124).
Regarding claim 9, Wolf and Sakai together teach all the elements of the current invention as applied to claim 1. As above, Wolf teaches the agrochemical active compound can be acrinathrin (i.e., a pyrethroid listed in the instant claim 5; Wolf, page 4, paragraph 0114). Wolf teaches the solid agrochemical active compound is preferably present in 10-35% by weight (Wolf, page 5, paragraph 0132), which overlaps the claimed range of 0.5-20% by weight of the formulation. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP §2144.05(I).
Regarding claim 10, Wolf and Sakai together teach all the elements of the current invention as applied to claim 8. Wolf teaches the composition comprises at least one penetrant (Wolf, abstract) and teaches one or more suitable additives can be present in the aqueous suspension including emulsifiers, dispersants, antifoams, and thickeners (i.e., rheology modifiers; Wolf, page 4, paragraph 0118) preferably in 3-12% by weight (Wolf, page 5, paragraph 0133). As above, Wolf teaches the antifoam can be polydimethylsiloxane (alkylated siloxanes are wetting agents as defined by the instant specification, page 8, 7th paragraph; Wolf, page 5, paragraph 0124). Wolf teaches the penetrant can be ethylhexyl laurate (Wolf, page 2, paragraph 0063) and exemplifies a composition comprising ethylhexyl laurate in 43% by weight (Wolf, page 6, example 1), which lies within the claimed range of 1-60% by weight for the adjuvant; a silicone antifoam in 0.1% by weight (Wolf, page 6, example 1), which lies within the claimed range of 0-10% by weight of the wetting agent; 50 g of a 2% by weight solution of a thickener (Wolf, page 6, example 1), which results in 0.2% by weight in the formulation and which lies within the claimed range of 0.01-0.8% of the rheology modifier; and 227 g of a 1% by weight solution of polyvinyl alcohol in water (Wolf, page 6, example 1), which results in 0.45% by weight of polyvinyl alcohol and which lies within the claimed range of 0.001-0.5% by weight of the emulsifier. Wolf defines polyvinyl alcohol as an example of a protective colloid which is used as an emulsifier (Wolf, page 5, paragraph 0121). Because Wolf teaches additives are preferably present in 3-12% by weight Wolf (page 5, paragraph 0133), and the exemplified composition comprises as additives an emulsifier, antifoam, and thickener in a total of 1.65% by weight (Wolf, page 6, example 1), it would be obvious to one of ordinary skill in the art to add at least 1.45% of another additive, such as a dispersant (Wolf, page 4, paragraph 0118), which would overlap the claimed range of 0.5-10% by weight. In the cases where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP §2144.05(I).
Regarding claim 11, Wolf and Sakai together teach all the elements of the current invention as applied to claim 8. Wolf teaches the composition comprises at least one penetrant (Wolf, abstract) and teaches one or more suitable additives can be present in the aqueous suspension including emulsifiers, dispersants, antifoams, and thickeners (i.e., rheology modifiers; Wolf, page 4, paragraph 0118) preferably in 3-12% by weight (Wolf, page 5, paragraph 0133). As above, Wolf teaches the antifoam can be polydimethylsiloxane (alkylated siloxanes are wetting agents as defined by the instant specification, page 8, 7th paragraph; Wolf, page 5, paragraph 0124). Wolf teaches the penetrant can be ethylhexyl laurate (Wolf, page 2, paragraph 0063) and exemplifies a composition comprising ethylhexyl laurate in 43% by weight (Wolf, page 6, example 1), which lies within the claimed range of 1-60% by weight for the adjuvant; a silicone antifoam in 0.1% by weight (Wolf, page 6, example 1), which lies within the claimed range of 0-10% by weight of the wetting agent; 50 g of a 2% by weight solution of a thickener (Wolf, page 6, example 1), which results in 0.2% by weight in the formulation and which lies within the claimed range of 0.01-0.8% of the rheology modifier; and 227 g of a 1% by weight solution of polyvinyl alcohol in water (Wolf, page 6, example 1), which results in 0.45% by weight of polyvinyl alcohol and which lies within the claimed range of 0.001-0.5% by weight of the emulsifier. Wolf defines polyvinyl alcohol as an example of a protective colloid which is used as an emulsifier (Wolf, page 5, paragraph 0121). Because Wolf teaches additives are preferably present in 3-12% by weight (Wolf, page 5, paragraph 0133), and the exemplified composition comprises as additives an emulsifier, antifoam, and thickener in a total of 1.65% by weight (Wolf, page 6, example 1), it would be obvious to one of ordinary skill in the art to add at least 1.45% of another additive, such as a dispersant (Wolf, page 4, paragraph 0118), which would overlap the claimed range of 1-30% by weight. In the cases where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP §2144.05(I).
Regarding claim 12, Wolf and Sakai together teach all the elements of the current invention as applied to claim 8. Wolf teaches the composition comprises at least one penetrant (Wolf, abstract) and teaches one or more suitable additives can be present in the aqueous suspension including emulsifiers, dispersants, antifoams, and thickeners (i.e., rheology modifiers; Wolf, page 4, paragraph 0118) preferably in 3-12% by weight (Wolf, page 5, paragraph 0133). As above, teaches the antifoam can be polydimethylsiloxane (alkylated siloxanes are wetting agents as defined by the instant specification, page 8, 7th paragraph; Wolf, page 5, paragraph 0124). Wolf teaches the penetrant can be ethylhexyl laurate (Wolf, page 2, paragraph 0063) and exemplifies a composition comprising ethylhexyl laurate in 43% by weight (Wolf, page 6, example 1), which lies within the claimed range of 1-60% by weight for the adjuvant; a silicone antifoam in 0.1% by weight (Wolf, page 6, example 1), which lies within the claimed range of 0-10% by weight of the wetting agent; 50 g of a 2% by weight solution of a thickener (Wolf, page 6, example 1), which results in 0.2% by weight in the formulation and which lies within the claimed range of 0.01-0.8% of the rheology modifier; and 227 g of a 1% by weight solution of polyvinyl alcohol in water (Wolf, page 6, example 1), which results in 0.45% by weight of polyvinyl alcohol and which lies within the claimed range of 0.001-0.5% by weight of the emulsifier. Wolf defines polyvinyl alcohol as an example of a protective colloid which is used as an emulsifier (Wolf, page 5, paragraph 0121). Because Wolf teaches additives are preferably present in 3-12% by weight Wolf (page 5, paragraph 0133), and the exemplified composition comprises as additives an emulsifier, antifoam, and thickener in a total of 1.65% by weight (Wolf, page 6, example 1), it would be obvious to one of ordinary skill in the art to add at least 1.45% of another additive, such as a dispersant (Wolf, page 4, paragraph 0118), which would overlap the claimed range of 1-30% by weight. In the cases where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP §2144.05(I).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Wolf (US 20050221991 A1; IDS reference, 03/15/2023) and Sakai (US 20050179983 A1) as applied to claims 1 and 3-12, and further in view of Anderson (US 20200178520 A1). The references were cited previously by the Examiner.
Regarding claim 13, Wolf and Sakai together teach all the elements of the current invention as applied to claim 11. Wolf exemplifies a composition comprising a silicone antifoam in 0.1% by weight (Wolf, page 6, example 1), which lies within the claimed range of 0.01-0.1% of the antifoam; and Proxel GXL® in 0.18% by weight (i.e., a suitable biocide as defined by the instant specification, page 14, 11th paragraph; Wolf, page 6, example 1), which lies within the claimed range of 0.01-0.2% of the biocide. Wolf also teaches a composition which comprises glycerol (i.e., a suitable antifreeze as defined by the instant specification, page 15, 1st paragraph) in 5% (Wolf, page 7, example 8). Wolf does not teach a pH buffer agent (i.e., 0% of a buffer agent), which fits within the claimed range of 0-1% by weight.
Wolf does not teach the composition comprises an antioxidant within the claimed range. Anderson, however, teaches an agricultural composition (Anderson, abstract) comprising BHT (i.e., suitable antioxidant as defined by the instant specification, page 15, 2nd paragraph) in 0.01-0.1% by weight (Anderson, page 21, paragraph 0148).
Wolf, Sakai, and Anderson are considered to be analogous to the claimed invention, because all are in the same field of compositions which can be used as agrochemicals. 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 capsule taught by Wolf and Sakai to have included the antioxidant taught by Anderson, because Wolf teaches the addition of chemicals for preservation and stabilization of the composition (Wolf, page 4, paragraph 0064) and Anderson teaches BHT can preserve microbial or fungal degradation during storage (Anderson, page 21, paragraph 0148, paragraph 0148).
Conclusion
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.
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/C.P.J./Examiner, Art Unit 1613
/JENNIFER A BERRIOS/ Primary Examiner, Art Unit 1613