DETAILED ACTION
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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 02/04/2026 has been entered.
New 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.
Claims 1-17 and 21-23 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.
Claim 1 has been amended to recite optionally a rheological modifier (e2), an antifoam substance (e3), and an antifreeze agent (e4), and f) optionally one or more carriers to 100%. It is unclear if the rheological modifier, antifoam substance, and antifreeze agent are all optional components or if the rheological modifier is the only optional component as the placement of the term “optionally” occurs in the middle of the list of the ingredients and at the end.
Claims 2-17 and 21-23 are rejected in view of their dependency on claim 1.
New 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.
1. Claims 1-2, 4-6, 8, 10-12, 15, and 21-23 are rejected under 35 U.S.C. 103 as being unpatentable over Xu et al., (US 2013/0190360 A1, July 25, 2013) (hereinafter Xu).
Xu discloses a composition comprising a pyripyropene pesticide and an adjuvant ([0001]). Suitable adjuvants are all known materials of this class and are known to an expert, such as, sticker adjuvants, or penetration agents. Further examples are surfactants (e.g. nonionic, anionic, cationic or ampohoteric), wetting agents, spreading agents, sticking agents, humectants, penetration agents (e.g. vegetable oil concentrates, modified vegetable oil) ([0033]). The adjuvant may comprise at least one nonionic surfactant in a solution in a suitable solvent, such as vegetable oils (i.e., a) One or more drift reducing ingredients) ([0067]). At least one non-ionic surfactant may be used in combination with one or more anionic or cationic surfactants (i.e., ionic surfactant (e1)) ([0068]). Suitable non-ionic surfactants include PEG-10 coconut alcohol (i.e., d) One or more uptake enhancing agents)) ([0071]). The adjuvant comprises at least one silicone-based adjuvant used in combination with one or more other adjuvants, particularly, one or more non-ionic surfactants ([0092]). Silwet® L-77, a polyalkyleneoxide modified heptamethyltrisiloxane (i.e., c) One or more spreading agents)), is a silicone-based adjuvant ([0097]). The inventive composition may also comprise auxiliaries which are customary in agrochemical formulations, such as organic and inorganic thickeners (i.e., rheological modifier (e2)), anti-freezing agents, and anti-foaming agents ([0142]). Examples for suitable anti-freezing agents are ethylene glycol (i.e., e4) and examples for anti-foaming agents are silicone emulsions (such as e. g. Silikon® SRE) (i.e., e3 is a silicone oil) ([0146]). The composition is an emulsion concentrate (EC). Preferably the EC comprises 0.5 to 30 wt % of insecticide, 10 to 70 wt % of adjuvant, and formulation auxiliaries up to 100%, the formulation auxiliaries comprising in particular at least one organic solvent, preferably in amounts from 20 to 70 wt %, wherein all components sum up to 100 wt % ([0244]). Various types of fungicides may be added to the active compounds, if appropriate not until immediately prior to use (tank mix) ([0178]). Aqueous application forms can be prepared from emulsion concentrates, pastes or wettable powders by adding water. To prepare emulsions, pastes or oil dispersions, the substances, as such or dissolved in an oil or solvent (i.e., free of water), can be homogenized in water by means of a wetter, tackifier, dispersant or emulsifier ([0175]). The composition may also comprise auxiliaries such as solid carriers ([0142]).
Xu discloses tank mix ([0178]) compositions containing vegetable oils (i.e., a) One or more drift reducing ingredients) ([0067]) in amounts from 20 to 70 wt % ([0244]), a polyalkyleneoxide modified heptamethyltrisiloxane (i.e., c) One or more spreading agents) ([0097]) in 10 to 70 wt % ([0244]), PEG-10 coconut alcohol (i.e., d) One or more uptake enhancing agents)) (i.e., ethoxylated alcohol) ([0071]), cationic surfactants (i.e., ionic surfactant (e1)) ([0068]), organic and inorganic thickeners (i.e., rheological modifier (e2)) ([0142]), ethylene glycol (i.e., an antifreezing substance (e4)) and silicone emulsions (such as e. g. Silikon® SRE) (i.e., an antifoam substance (e3)) ([0146]). Together these would provide a composition as claimed instantly. The prior art is not anticipatory insofar as these combinations must be selected from various lists/locations in the reference. It would have been obvious, however, to make the combination since all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP 2143(I)(A).
Regarding claim 2, as discussed above, Xu teaches that the composition may comprise solid carriers and does not teach that any other carrier is required. Thus, it would have been obvious to formulate the composition of Xu wherein the composition does not contain one or more carriers since the presence of carriers is optional. Further, as discussed above, Xu teaches that the composition comprises a pyripyropene pesticide and an adjuvant, such as a vegetable oil. Thus, it would have been obvious to formulate the composition of Xu wherein the composition is free of water since no other ingredients are required beyond the pyripyropene pesticide and an adjuvant, such as a vegetable oil, as taught by Xu.
Regarding the limitation of claim 21 “for application on a plant or crop with textured leaf surfaces,” this is merely a recitation of the intended use of the claimed composition. The composition of Xu comprises agrochemicals. Therefore, it is usable for application on a plant or crop with textured leaf surfaces, whether the prior art discloses such use or not.
Regarding claim 22 reciting “wherein the composition is capable of being applied by a UAV, UGV, PWM spray nozzle,” the claimed recitation of “capable of” is merely a functional recitation requiring the ability to fulfill that function. The claim does not require, however, that function to actually occur. The composition of Xu is a liquid composition. As noted on page 28 of the instant specification, spray liquids are applied by customary methods, i.e., for example, by spraying, pouring or injecting, in particular by spraying, and most particular by spraying by UAV.” Accordingly, the composition of Xu is capable of being applied by UAV since it is a liquid composition and liquid compositions can be sprayed. Accordingly, since the prior art is capable being applied by UAV, the claim is read upon by the prior art as currently drafted.
2. Claims 3, 7, 9, 13-14, and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Xu et al., (US 2013/0190360 A1, July 25, 2013) (hereinafter Xu) in view of Faers et al., (WO 2017/202684 A1, Nov. 30, 2017) (cited by applicant on IDS dated 05/02/2023) (hereinafter Faers).
As discussed above, Xu makes obvious the limitations of claim 1, but does not teach wherein the composition comprises component (b) one or more rain-fast additives and wherein b) is an emulsion polymer or polymer dispersion with Tg in the range from -100° C to 300 C, wherein said polymer is a copolymer of an acrylate and a styrene, wherein said acrylate is selected from the group consisting of 2-ethyl-hexyl acrylate, butyl acrylate, sec-butyl acrylate, ethyl acrylate, methyl acrylate, acrylic acid, acrylamide, iso-butyl acrylate, methyl methacrylate, or combinations thereof, and said styrene is selected from the group consisting of styrene, tert-butyl styrene, para-methyl styrene, or combinations thereof and does not teach wherein the composition comprises an active ingredient selected from the group consisting of trifloxystrobin, bixafen, prothioconazole, inpyrfluxam, isoflucypram, fluopicolide, fluopyram, fluoxapiprolin, isotianil, spirotetramat, tetraniliprole, ethiprole, imidacloprid, deltamethrin, flupyradifuron, spidoxamat, triafamone, tembotrione, thiencarbazone-methyl, isoxadifen-ethyl and cyprosulfamat..
However, Faers discloses agrochemical compositions based on emulsion polymers; their use for foliar application and their application in aqueous crop protection flowable formulations for controlling agricultural pests and reducing the wash-off of active ingredients by rainfall (Abstract). The emulsion polymer system comprises I) stabiliser polymer; and II) core-stabiliser copolymer, wherein the I) stabiliser polymer has a Tg in the range from 30°C to 300°C and the II) core polymer has a Tg in the range from -100°C to 10°C (Claim 1b). The core polymer (II) is selected from copolymers of an acrylate and a styrene. Said acrylate may be methyl methacrylate and said styrene may be styrene (page 13, lines 14-18). Fungicides are active ingredients (page 4, lines 23-24) and bixafen is a preferred fungicide (page 5, line 11).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Xu discloses wherein the adjuvant comprises sticker adjuvants and/or sticking agents. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated the emulsion polymer of Faers into the composition of Xu since it is a known adjuvant effective to reduce the wash-off of active ingredients by rainfall in agrochemical compositions (i.e., sticker adjuvant/sticking agent) as taught by Faers.
Regarding the claimed amount of component b) in claims 9, 13, 14, and 16, as discussed above, Xu teaches that adjuvants are present in the composition in a combination resulting in 10 to 70 wt % of the composition and Faers teaches that the emulsion polymer is an adjuvant that reduces the wash-off of active ingredients by rainfall in agrochemical compositions. Accordingly, after determining the amount of other ingredients desired in the adjuvant combination, one of ordinary skill in the art would have arrived at the claimed amount of component b) through routine experimentation based on the amount of the emulsion polymer necessary to effectively reduce the wash-off of active ingredients. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A).
Regarding claim 17, generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Xu discloses wherein the composition comprises fungicides. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated bixafen into the composition of Xu since it is a known and effective fungicide as taught by Faers.
Response To Applicant’s Arguments
Applicant’s arguments have been considered but are moot because new rejections necessitated by Applicant’s amendments have been made.
Conclusion
Claims 1-17 and 21-22 are rejected.
Claims 18-20 are withdrawn.
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Samantha J Knight whose telephone number is (571)270-3760. The examiner can normally be reached Monday - Friday 8:30 am to 5:00 pm ET.
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/S.J.K./ Examiner, Art Unit 1614
/TRACY LIU/ Primary Examiner, Art Unit 1614