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 1-3, 5-12, and 14-15 are pending and represent all claims currently under consideration.
Response to Amendment
The amendment filed 09/23/2025 has been entered.
Claims 1-3, 6-12, and 14-15 were amended. Claims 4 and 13 were canceled. No new material was added.
Applicant’s amendments have overcome the previous objections to the claims; the previous rejections of claims 1-3 and 6-12; and the provisional rejection of claims 1-3, 10-12, and 14-15 due to double patenting.
The objections and rejections of claims 4 and 13 are moot, because the claims were canceled.
The rejection of claim 15 under 35 U.S.C. 112(b) and the objections to the specification have been maintained.
Claims 1 and 9 are newly rejected under 35 U.S.C. 112(b) and claim 12 is newly objected to due to the amendments.
The rejection of claims 1-3, 6-12, and 14-15 under 35 U.S.C. 103 has been modified to address the amendments.
Response to Arguments
Applicant's arguments filed 06/25/2025, with respect to the objections to the specification and the rejection of claims 7 and 9 under 35 U.S.C. 103 over Faers and Vermeer have been fully considered but they are not persuasive.
Applicant states that a substitute specification was submitted to address the objections (Remarks, page 6). However, there is no substitute specification present in the amendment filed 09/23/2025. Therefore, the objections to the specification have been maintained.
Applicant’s arguments, see Remarks (page 8), filed 06/25/2025, with respect to the rejection of claims 1-6, 10-12, and 14-15 under 35 U.S.C. 103 over Faers have been fully considered and are persuasive due to the amendment of the independent claim 1. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Faers and Vermeer.
Applicant states that Faers does not teach an adjuvant composition for use in tank mix compositions (Remarks, page 8). This argument is not persuasive, because as previously stated, Faers teaches an agrochemical composition comprising an aqueous dispersion of an active compound (Faers, claim 1) wherein an aqueous dispersion formulation includes tank mixing and is for controlling agricultural pests, weeds or diseases (i.e., a crop protection product; Faers, page 1, lines 5-10). Further, Faers comprises each of the claimed components a), b), and d) (i.e., the adjuvants of the claimed composition) as discussed in the rejection below.
Applicant states there is no direction from Faers to combine the components in as claimed (Remarks, page 8). This argument is not persuasive, because while Faers does not teach a single embodiment having all of the claimed components simultaneously, it must be remembered that “[w]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” KSR v. Teleflex, 127 S.Ct. 1727, 1740 (2007) (quoting Sakraida v. AG. Pro, 425 U.S. 273, 282 (1976)). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious,” the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR at 1741. The Court emphasized that “[a] person of ordinary skill is... a person of ordinary creativity, not an automaton.” Id. at 1742. Consistent with this reasoning, it would have been prima facie obvious to have selected various combinations of various disclosed ingredients to arrive at the invention as claimed based on the teachings of Faers.
Applicant states that there is no direction or teaching from Faers and Vermeer to incorporate component d) in the claimed concentration with a) and b), and that there must be an articulated showing that one skilled in the art would have had any reason to combine the components as in the pending claims (Remarks, pages 9-10, “Faers and Vermeer”). This argument is not persuasive, because Faers teaches the composition comprises penetration promoters (Faers, claim 2) but does not specify a preferred weight range of a penetration promoter, while Vermeer teaches penetrants (i.e., penetration promoters) in the claimed amount result in ideal penetration levels of the agricultural active ingredient (Vermeer, page 17, paragraphs 0281-0282). 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 modified the teachings Faers to include the penetration promoter in the amount taught by Vermeer, in order to achieve ideal penetration levels.
Information Disclosure Statement
The information disclosure statements filed 08/06/2025 and 09/23/2025 have been considered.
New Claim Objections
Claim 12 is objected to because of the following informalities: “capable be being” should read “capable of being”. Appropriate correction is required.
Maintained Objections to the Specification
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code. Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01.
The use of the terms Acronal, Licomer, Atplus, Clariant, Croda, Solvay, Akzo Nobel, BASF, Nouryon, Tween, Wacker, Silchem, Lanxess, Dow, Dowanol, Dupont, Oleon, ExxonMobile, Shell, Michelman, Synthomer, Kuraray, Antarox, Genapol, Aerosil, Evonik, Rudis, and Nativo which are trade names 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.
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.
Claim 15 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.
Regarding claim 15, the terms “UAV”, “UGV”, and “PWM” are unclear and should be defined.
New Claim Rejections - 35 USC § 112
Claims 1 and 9 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 claim 1, the term “EO” is unclear and should be defined. Further, the phrase “selected from the group comprising” renders the claims indefinite, because a Markush grouping is a closed list of alternatives and “comprising” is open-ended. It is unclear what other alternatives are intended to be encompassed by the claim. See MPEP § 2173.05(h)(I).
Regarding claim 9, the claim recites the limitation “f) in the following amount”, which is an optional embodiment according to the independent claim 1, but does not recite an amount. Therefore, it is unclear if “f” is present in the composition or not.
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 1-3, 5-12, and 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Faers (WO 2017202684 A1; IDS reference, 05/02/2023), further in view of Vermeer (US 20090247597 A1; IDS reference, 05/02/2023). The references were cited previously by the Examiner.
Regarding claim 1, Faers teaches an agrochemical composition comprising an aqueous dispersion of an active compound (Faers, claim 1) wherein an aqueous dispersion formulation includes tank mixing and is for controlling agricultural pests, weeds or diseases (i.e., a crop protection product; Faers, page 1, lines 5-10). Faers teaches the composition comprises a oils component “e” in an amount of 160 g/l (Faers, page 22, example 2), which corresponds to 15.5% by weight of the components and lies within the claimed range of 2-25%, and teaches oils can be vegetable oils (i.e., a drift reducing ingredient “a” from the claimed list; Faers, page 21, line 13); and a penetration promotor “f” which can be Antarox B/848 (i.e., a suitable uptake enhancing agent “d” which is propoxy-ethoxylated fatty acid as defined by the instant specification, page 24, line 18; Faers, page 20, line 25). Faers teaches the composition comprises an emulsion polymer (Faers, claim 1) wherein the core polymer has a Tg most preferably from -40 to -10 °C (Faers, page 10, lines 16-17) and preferably is a copolymer of butyl acrylate and styrene (i.e., a rain-fast additive “b” from the claimed list; Faers, page 10, lines 21-22). Faers further teaches the composition comprises other formulants “e” (Faers, claim 1) and an aqueous carrier phase (Faers, page 6, line 25), resulting in the claimed agricultural adjuvant composition.
Faers teaches a composition comprising a component “f” which can be a penetration promoter (i.e., an uptake enhancing agent “d”; Faers, page 19, line 27), but does not demonstrate an amount within the claimed range. Vermeer teaches an agrochemical formulation (Vermeer, abstract) which can be diluted in water and applied to plants (i.e., crops) for controlling fungi (i.e., crop protection; Vermeer, claim 11) which can comprise a penetrant (i.e., an uptake enhancing agent “d”) in an amount of 1-50% by weight (Vermeer, page 4, paragraph 0075), which overlaps the claimed ranges. 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).
Faers and Vermeer are considered to be analogous to the claimed invention, because both are in the same field of agricultural sprays for crop protection. 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 teachings Faers to include the penetration promoter in the amount taught by Vermeer, because Vermeer teaches penetrants in the claimed amount result in ideal penetration levels of the agricultural active ingredient (Vermeer, page 17, paragraphs 0281-0282).
Regarding claim 2, Faers and Vermeer together teach all the elements of the current invention as applied to claim 1. As above, Faers teaches the composition comprises a component “e” which can be vegetable oils (Faers, page 21, line 13).
Regarding claim 3, Faers and Vermeer together teach all the elements of the current invention as applied to claim 1. As above, teaches the composition comprises penetration promoters such as Antarox B/848 (i.e., a suitable propoxy-ethoxylated fatty acid as defined by the instant specification, page 24, line 18; Faers, page 20, line 25).
Regarding claim 5, Faers and Vermeer together teach all the elements of the current invention as applied to claim 1. Faers teaches the composition comprises a component “e” which can be vegetable oils (i.e., a suitable drift reducing ingredient “a” according to the instant claim 2; Faers, page 21, line 13) and teaches oils in an amount of 160 g/l (Faers, page 22, example 2), which corresponds to 15.5% by weight of the components and lies within the claimed range of 4-20%.
Regarding claim 6, Faers and Vermeer together teach all the elements of the current invention as applied to claim 1. Faers teaches the composition comprises an emulsion polymer “b” (Faers, claim 1) wherein the core polymer has a Tg most preferably from -40 to -10 °C (Faers, page 10, lines 16-17) and preferably a copolymer of butyl acrylate and styrene (i.e., a suitable rain-fast additive “b” according to the instant claim 4; Faers, page 10, lines 21-22) in an amount of 30 g/l (Faers, page 24, example 1), which corresponds to 2.5% by weight and lies within the claimed range of 1-25%.
Regarding claim 7, Faers and Vermeer together teach all the elements of the current invention as applied to claim 1. As above, Faers teaches a composition comprising a component “f” which can be a penetration promoter (i.e., an uptake enhancing agent “d”; Faers, page 19, line 27), but does not specify an amount within the claimed ranges. Vermeer teaches a penetrant (i.e., an uptake enhancing agent “d”) in an amount of 1-50% by weight (Vermeer, page 4, paragraph 0075), which overlaps the claimed ranges. 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). As above, 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 teachings Faers to include the penetration promoter in the amount taught by Vermeer, because Vermeer teaches penetrants in the claimed amount result in ideal penetration levels of the agricultural active ingredient (Vermeer, page 17, paragraphs 0281-0282).
Regarding claim 8, Faers and Vermeer together teach all the elements of the current invention as applied to claim 1. Faers teaches the composition comprises other formulants which can be antifoams and antifreezes (Faers, page 19, line 25).
Regarding claim 9, Faers and Vermeer together teach all the elements of the current invention as applied to claim 1. Faers teaches compositions comprising an oils component “e” in an amount of 160 g/l (Faers, page 22, example 2), which corresponds to 15.5% by weight of the components and lies within the claimed range of 4-20%, and teaches oils can be vegetable oils (i.e., a suitable drift reducing ingredient “a” according to the instant claim 1; Faers, page 21, line 13); an emulsion polymer “b” (Faers, claim 1) in an amount of 30 g/l (Faers, page 24, example 1), which corresponds to 2.5% by weight and lies within the claimed range of 1-25%; non-ionic and anionic dispersants (i.e., “e1”, a non-ionic and/or ionic surfactant) in an amount of 75 g/l (Faers, page 24, example 1), which corresponds to 6.3% by weight of the components and lies within the claimed range; a rheological modifier (i.e., “e2”, page 7, line 6) in an amount of 2.4 g/l (Faers, page 24, example 1), which corresponds to 0.2% and lies within the claimed ranges; an antifoam (i.e., “e3”) in an amount of 2 g/l (Faers, page 24, example 1), which corresponds to 0.1% by weight of the components and lies within the claimed ranges; an antifreeze (i.e., “e4”) in an amount of 80 g/l (Faers, page 24, example 1), which corresponds to 6.7% by weight of the components and lies within the claimed range of 5-38%; and biocides (i.e., defined by the instant specification as a suitable other formulant “e5”, page 7, line 9) in 2.6 g/l (Faers, page 24, example 1), which corresponds to 0.2% by weight of the components and lies within the claimed ranges.
As above, Faers teaches a component “f” which can be a penetration promoter (i.e., an uptake enhancing agent “d”; Faers, page 19, line 27), but does not specify an amount within the claimed ranges. Vermeer teaches a penetrant (i.e., an uptake enhancing agent “d”) in an amount of 1-50% by weight (Vermeer, page 4, paragraph 0075), which overlaps the claimed ranges. 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). As above, 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 teachings Faers to include the penetration promoter in the amount taught by Vermeer, because Vermeer teaches penetrants in the claimed amount result in ideal penetration levels of the agricultural active ingredient (Vermeer, page 17, paragraphs 0281-0282).
Regarding claim 10, Faers and Vermeer together teach all the elements of the current invention as applied to claim 1. Faers teaches the composition comprises Trifloxystrobin as the active ingredient (Faers, page 42, recipe 1).
Regarding claim 11, Faers and Vermeer together teach all the elements of the current invention as applied to claim 1. Faers does not state the formulation is capable of being applied at a certain spray volume, but this is considered to be a property of the claimed formulation. Faers and Vermeer together teach the composition of the instant claim as stated above. Therefore, it would be reasonable to expect the composition is capable of being applied at the claimed spray volume. Faers further teaches the application rate can be varied based on the particular active ingredient and amount (Faers, page 21, lines 27-28).
Regarding claim 12, Faers and Vermeer together teach all the elements of the current invention as applied to claim 1. Faers teaches the composition comprises an emulsion polymer (Faers, claim 1) wherein the core polymer has a Tg most preferably from -40 to -10 °C (Faers, page 10, lines 16-17) and preferably a copolymer of butyl acrylate and styrene (i.e., a suitable rain-fast additive “b” according to the instant claim 1; Faers, page 10, lines 21-22). Faers teaches a composition comprising the emulsion polymer dispersion “b” (Faers, page 24, line 13) in an amount of 30 g/ha (Faers, page 25, table 2), which lies within the claimed ranges.
Regarding claim 14, Faers and Vermeer together teach all the elements of the current invention as applied to claim 1. Faers does not specifically teach the composition is applied to leaves having a textured surface. The phrase “for application on a plant or crop with textured leaf surfaces” is considered to be a recitation of intended use. Patentability of apparatus or composition claims depends on the claimed structure, not on the use or purpose of that structure. See MPEP § 2111.02. Faers and Vermeer together teach the composition of the instant claim as stated above. Faers further teaches the composition provides enhanced resistance of the active ingredients to wash off from plant surfaces (Faers, page 3, lines 18-19), and teaches such plants to include wheat (i.e., a plant or crop with a textured leaf surface as defined by the instant specification, page 9, line 38; Faers, page 22, line 15), while Vermeer also teaches plants including wheat (Vermeer, page 10, paragraph 0194) and application to the upper side of a leaf of a plant (Vermeer, page 16, paragraph 0273). Therefore, it would be reasonable to expect that the composition as taught by Faers and Vermeer could be applied to a crop with textured leaf surfaces.
Regarding claim 15, Faers and Vermeer together teach all the elements of the current invention as applied to claim 1. Faers and Vermeer do not state a formulation is capable of being applied by a UAV, UGV, or PWM, but this is considered to be a property of the claimed formulation. Faers and Vermeer together teach the composition of the instant claim as stated above. Faers further teaches the composition is a spray liquid applied by customary methods (Faers, page 21, lines 25-26) and teaches the composition is used to control agricultural pests or weeds (i.e., harmful organisms; Faers, claim 4), and Vermeer further teaches treatment is carried out by customary methods including spraying (Vermeer, page 9, paragraph 0190) and can be used as fungicides, bactericides, viricides, etc. (i.e., for controlling harmful organisms; Vermeer, page 6, paragraph 0109). Therefore, it would be reasonable to expect the composition is capable of being applied by the claimed methods for the claimed application.
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