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Claims 11-12 are withdrawn.
Claims 1-3, 5-10, and 14-19 are pending and represent all claims currently under consideration.
Response to Amendment
The amendment filed 08/03/2026 has been entered.
Claims 1, 5-7, 9, 11-12, and 17-18 are amended. Claim 19 is newly added. No new material was added.
Claims 11-12 are withdrawn due to the amendment.
Applicant’s amendments overcome the previous rejections of claims 1-3, 5-12, and 14-18 under 35 U.S.C. 112.
The rejections of claims 1-3, 5-10, and 14-18 under 35 U.S.C. 103 have been modified to address the amendments and maintained.
Claim 19 is newly rejected under 35 U.S.C. 103.
Response to Arguments
Applicant's arguments filed 08/03/2026 have been fully considered but they are not persuasive.
Applicant argues that Faers and Vermeer do not teach or direct one skilled in the art to the claimed compositions combining components a), b), and d) in the manner claimed, and that it would not have been obvious to have selected the claimed combination of components based on the teachings of Faer (Remarks, pages 8-9). 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 as described in the rejection below.
Applicant states that there is simply no reason from the teachings of Faers to have selected the claimed ingredients at the claimed concentrations in adjuvant composition, and states that the formulation of Faers describes a ready to use in-can formulation containing an active ingredient, and that therefore the concentrations of an adjuvant composition prior to the addition of the active ingredient would be different (Remarks, pages 9-10). This argument is not persuasive, because there is no limitation in the independent claim 1 that requires the exclusion of an active ingredient or the calculation of a concentration prior to the addition of an active ingredient. Further, the dependent claim 10 requires an active ingredient, supporting that an active ingredient can be present.
Applicant argues that the teachings of Faers are not directed to adjuvant composition for use in tank mix compositions and that adjuvant compositions per se are not discussed in Vermeer (Remarks, pages 11-12). This argument is not persuasive, because as described in the rejection below, Faers and Vermeer teach agricultural compositions comprising the claimed adjuvants, which reads on an agricultural adjuvant composition as claimed.
Applicant argues that there is no teaching in Vermeer to incorporate a penetrant in an amount of from about 35 to about 55% by weight as now claimed (Remarks, page 12). This argument is not persuasive, because as stated in the rejection below, Vermeer teaches a composition which can comprise a penetrant in an amount of 1-50% by weight (Vermeer, page 4, paragraph 0075), which overlaps the claimed range of from about 35-55%. 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).
Election/Restrictions
Newly amended claims 11-12 are directed to an invention that that lacks unity with the invention originally claimed for the following reasons:
REQUIREMENT FOR UNITY OF INVENTION
As provided in 37 CFR 1.475(a), a national stage application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (“requirement of unity of invention”). Where a group of inventions is claimed in a national stage application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art.
The determination whether a group of inventions is so linked as to form a single general inventive concept shall be made without regard to whether the inventions are claimed in separate claims or as alternatives within a single claim. See 37 CFR 1.475(e).
When Claims Are Directed to Multiple Categories of Inventions:
As provided in 37 CFR 1.475 (b), a national stage application containing claims to different categories of invention will be considered to have unity of invention if the claims are drawn only to one of the following combinations of categories:
(1) A product and a process specially adapted for the manufacture of said product; or
(2) A product and a process of use of said product; or
(3) A product, a process specially adapted for the manufacture of the said product, and a use of the said product; or
(4) A process and an apparatus or means specifically designed for carrying out the said process; or
(5) A product, a process specially adapted for the manufacture of the said product, and an apparatus or means specifically designed for carrying out the said process.
Otherwise, unity of invention might not be present. See 37 CFR 1.475 (c).
This application contains the following inventions or groups of inventions which are not so linked as to form a single general inventive concept under PCT Rule 13.1.
Group I, claims 1-3, 5-10, and 14-19, drawn to an agricultural adjuvant composition; and
Group II, claims 11-12, drawn to a method for application of an agricultural adjuvant formulation.
The groups lack unity of invention because even though the inventions of these groups require the technical feature of an agricultural adjuvant composition comprising a drift reducing ingredient, a rain-fast additive, an uptake enhancing agent, and other formulants, this technical feature is not a special technical feature as it does not make a contribution over the prior art in view of Faers and Vermeer as discussed in the rejection of claim 1 below.
Since applicant has received an action on the merits for the originally presented invention of Group I, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 11-12 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.
Information Disclosure Statement
The information disclosure statements filed 08/03/2026 and 08/21/2026 have been considered.
Modified/Maintained 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, 5-10, and 14-18 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 an oils component “e” in an amount of 160 g/l (Faers, page 26, example 2), and teaches oils can be vegetable oils (i.e., a drift reducing ingredient “a” from the claimed list; Faers, page 21, line 13), which corresponds to 15.5% by weight of the components and lies within the claimed range of 4-20% of “a”; and a penetration promotor “f” which can be Antarox B/848 (i.e., a suitable uptake enhancing agent “d” which is propoxy-ethoxylated alcohol as defined by the instant specification, page 24, line 18; Faers, page 20, line 25). Faers teaches the composition comprises an emulsion polymer “b” (Faers, claim 1) which is referred to as a rainfast additive (Faers, page 33, table 8), wherein the polymer preferably is a copolymer of butyl acrylate and styrene (i.e., a copolymer “b” from the claimed list; Faers, page 10, lines 21-22), and Faers exemplifies the composition comprises the polymer component “b” in 60 g/l (Faers, page 37, example 9), which corresponds to 5.5% by weight of the components and lies within the claimed range of from about 5-20%. Faers further teaches the composition comprises other formulants “e” (Faers, claim 1) and an aqueous carrier phase (i.e., an optional carrier “f”; 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 range of from about 35-55%. 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 alcohol 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 26, example 2), which corresponds to 15.5% by weight of the components, and which is reasonably close to the claimed range of 5-15%. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05(I).
Regarding claim 6, Faers and Vermeer together teach all the elements of the current invention as applied to claim 1. Faers teaches a composition comprising dispersants in an amount of 75 g/L (Faers, pages 24-25, example 1), and teaches a preferable weight ratio of styrene (meth)acrylic copolymers to other dispersants of usually from 16:1 to 2:1 (Faers, page 9, lines 23-28). Therefore, it would be reasonable to optimize the amount of the copolymer within this range, which would result in an amount of 150-1200 g/L, or about 11.4-50% by weight of the copolymer, which overlaps the claimed range of 8-18%. 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 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 range of 40-55%. 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 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. 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 26, example 2), which corresponds to 15.5% by weight of the components, and which is reasonably close to the claimed range of 5-15%. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05(I). Faers teaches a composition comprising dispersants in an amount of 75 g/L (Faers, pages 24-25, example 1), and teaches a preferable weight ratio of styrene (meth)acrylic copolymers (i.e., “b”) to other dispersants of usually from 16:1 to 2:1 (Faers, page 9, lines 23-28). Therefore, it would be reasonable to optimize the amount of the copolymer within this range, which would result in an amount of 150-1200 g/L, or about 11.4-50% by weight of the copolymer, which overlaps the claimed range of 8-18%. 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, 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 range. 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 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.
Regarding claim 16, Faers and Vermeer together teach all the elements of the current invention as applied to claim 1. As above, Faers teaches the composition comprises an emulsion polymer “b” (Faers, claim 1) which is preferably a copolymer of butyl acrylate and styrene (Faers, page 10, lines 21-22).
Regarding claim 17, Faers and Vermeer together teach all the elements of the current invention as applied to claim 9. Faers and Vermeer teach each of the components a)-f) as previously stated. Faers teaches required embodiments of an emulsion polymer system (i.e., “b” as defined above), additives which can be non-ionic surfactants (i.e., “e1”), rheological modifiers (i.e., “e2”), other formulants (i.e., “e5”), and an aqueous (i.e., a carrier “f”) dispersion of an active compound (i.e., another formulant “e5”; Faers, claim 1). Therefore, the composition of Faers and Vermeer consists essentially of the components a)-f).
Regarding claim 18, Faers and Vermeer together teach all the elements of the current invention as applied to claim 9. Faers and Vermeer teach each of the components a)-f) as previously stated. Faers teaches required embodiments of an emulsion polymer system (i.e., “b” as defined above), additives which can be non-ionic surfactants (i.e., “e1”), rheological modifiers (i.e., “e2”), other formulants (i.e., “e5”), and an aqueous (i.e., a carrier “f”) dispersion of an active compound (i.e., another formulant “e5”; Faers, claim 1). Therefore, the composition of Faers and Vermeer consists of the components a)-f).
New Claim Rejections - 35 USC § 103
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Faers (WO 2017202684 A1; IDS reference, 05/02/2023) and Vermeer (US 20090247597 A1; IDS reference, 05/02/2023) as applied to claims 1-3, 5-10, and 14-18, further in view of Meredith (US 20180070584 A1). Faers and Vermeer were cited previously by the Examiner.
Regarding claim 19, Faers and Vermeer together teach all the elements of the current invention as applied to claim 1. Faers teaches concentrate formulations are known in the art and can be produced by known methods familiar to those skilled in the art (Faers, page 23, method 2). Meredith teaches agricultural adjuvant concentrated compositions (Meredith, page 2, paragraph 0021), and teaches the agrochemical formulations may be prepared by customary processes, such as adding a pesticide to the adjuvant composition in the field just prior to application (Meredith, page 9, paragraph 0109). Meredith further defines the term “adjuvant composition” as having no bioactivity in its own right (Meredith, page 2, paragraph 0023), suggesting an adjuvant composition which is free of an agriculturally active ingredient as claimed.
Faers, Vermeer, and Meredith are considered to be analogous to the claimed invention, because Faers, Vermeer, Meredith, and the instant invention 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 separately add the active ingredient in the field at the time of application as taught by Meredith to be a known method of preparation, because Faers teaches the use of methods familiar to those in the art.
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
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