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 .
Detailed Action
Previous Rejections
Applicants' arguments, filed 04/16/26, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Objections:
Claims 8-10 are objected to because of the following informalities:
Claims 8-10 are objected to for missing a period at the end of the sentence.
Appropriate correction is required.
Claim Rejections - 35 USC § 112, indefiniteness
The following is a quotation of 35 U.S.C. 112(b):
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 1-3, 5-6, 8-10, 13-15, 17-18, 20 and 24 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 pre-AIA the applicant regards as the invention.
Claims 1, 3 and 5 recite the limitation “including” which makes the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d). The artisan does not know whether the limitations following "including" are merely exemplary or are required limitations of the claim. In claim 24, the recitation of two amounts for the preservative is confusing and makes the claim indefinite because it is not clear which amount is included or excluded.
(Note: While claim 4 is withdrawn, it recites broad and narrow ranges of the average molecular weights and the amounts which would make the claim indefinite if rejoined in further prosecution. While claim 21 is withdrawn, recitation of “optionally” would make the claim indefinite if rejoined in further prosecution).
All other remaining claims are depending on claim 1 and do not further clarify addressed issues of claim 1 above, therefore they are rejected accordingly.
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.
Claims 1-3, 5-6, 8-10, 13-15, 17-18 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Faers et al. (US PG Pub. 2020/0315165A1 or corresponding WO-2017/202684A).
Faers et al. disclose agrochemical formulation based on emulsion polymers; their use for foliar application and their application in aqueous crop protection flowable formulations for controlling agricultural pests, weeds and diseases and reducing the wash off of active ingredients by rainfall, see title and abstract. Faers teaches tebuconazole as fungicide (reading on subsection a) of claim 1 as claimed), see page 8, lines 12-13. Use of tebuconazole and trifloxystrobin is taught in table 15 on page 15. Faers also teaches fungicides such as penflufen can be sued, see [0045]-[0046]. The amount of fungicide disclosed is 500g/L in example 1 and 200g/L in examples 2 and 3 (tebuconazole). This amount reads on the claimed amount ranging from 5 to 500g/l of active ingredient.
Faers teaches use of oils of vegetable origin or alkyl esters of these oils and rapeseed oil methyl ester, [ 0172] and [0176] and (these read on the claimed drift -reducing agents in subsection b) of instant claim 1). Faers also teaches use of sunflower oil, rapeseed oil, soybean oil and olive oil, see [0173]. The amount of oils taught in example 2 is 160g/l.
Faers teaches use of spreading agents such as ethoxylated branched alcohols (alcohol ethoxylates) and ethoxylated diacetylene-diols, e.g. Surfynol® 4xx-range ( reads on the claimed ethoxylated diacetylene-diols with 1 to 6 EO) and mono-and diesters of sulfosuccinate sodium salts, see [0157], [0165] and [0171], (reading on spreading agents claimed in subsection c) of instant claim 1).
Faers teaches use of stabilizers such as copolymers of acrylic acid with styrene with Tg of more than 30°C, (reads on the claimed rain-fast additives as claimed in subsection e) of claim 1), see page 7, lines 12-13. The copolymers of 75% ethyl-hexyl acrylate and 25% styrene can be used, see [0117]. The amount taught for the solid content of the above copolymer in table 2 ranges from 40% to 50%, see (table 1 and table 2 emulsion polymers) and see additives from table 4 (b) in example 2 is 30g/L on page 10 (which is referring to emulsion polymer, claimed as rain-fast additives in instant claim 1).
Faers teaches aqueous carrier phase in [ 00501].
Faers teaches use of non-ionic surfactants or dispersing aids such as polyethylene oxide-polypropylene oxide block copolymers, see [0142], (reading on the claimed f1), non-ionic surfactant of the instant claim 2). The amount of non-ionic surfactant in example 2 is 37g/l, see [0197] and this amount overlaps with the claimed amount of 8 to 120g/l of non-ionic surfactant as claimed in instant claim 15 ranging from 8 to 120g/l or optionally from 20 to 80g/l and thus creates a case of obviousness because even a slight overlap in range establishes a prima facie case of obviousness. MPEP 2144.05 A. Accordingly, since an overlap plainly exists here, it would have been obvious to have selected values within the overlap, consistent with the reasoning of the obviousness above.
Faers teaches use of possible anionic surfactants include alkyl phosphoric acid, see [0143], (reading on the claimed at least two surfactants of instant claim 2 as f1)). The amount of anionic surfactant in example 2 is 7g/l, see [0197].
Faers teaches rheology modifier polysaccharides such as xanthan gum, guar gum and hydroxyethyl cellulose, see [0145]-[0146], (reading on the claimed f2) of instant claim 2). The amount of rheology modifier in example 2 is 0.7g/l, see [0197].
The reference teaches that the suitable other formulants are selected from the group consisting of antifoams (claimed as f3) in instant claim 2), antifreeze (claimed as f4) in instant claim 2), antioxidants (reads on further formulants f5) of instant claim 2), stabilizers, wetting agents, spreading agents and micronutrients, biocides and pH adjusters, see [0149]. Suitable antifreeze examples include glycerine, urea and propylene glycol, see [0152] and Example 11. The amount of antifreeze is 80g/l in example 2. The amount of Antifoam is 2g/l in example 2, [0197]. The amount of antioxidants is 0.5g/l in example 2 which reads on the claimed other or formulants of instant claim 1 and further formulants f5) of instant claim 2. Biocides (other formulants) are disclosed to be at 3.7 g/l in Table 15.
Faers teaches use of preservatives such as 1,2-benzisothiazol-3(2H)-one, see 0151].
The reference teaches that the formulations by dilution with water can be converted into homogeneous spray liquids wherein they are applied by spraying, pouring or injecting, see [0177]. The reference teaches trifloxytrobin dose of 50g/ha and tebuconazole dose of 100g/ha with a water volume of 100l/ha in the spray formulation/application to rice plant, see [0231]. Tank-mixing is known in the art, see [0015]. Faers teaches that the application rate of the formulations according to the invention can be varied within a relatively wide range. It is guided by the particular active agrochemicals and by their amount in the formulations, see [0178]. Faers teaches enhanced resistance of the active ingredient(s) to wash-off from plant surfaces by rain with improved stability in aqueous based suspension concentrate, suspo-emulsion, aqueous suspension, capsule suspension or concentrated emulsion crop protection formulations, see [0205]. Faers teaches it is most desirable for practical purposes to provide highly storage-stable aqueous pesticide concentrates having no organic solvents or only solvent amounts to dissolve a crystalline pesticide in the form of an emulsion and which can be diluted easily with pure water, thereby forming stable dilute emulsions for application purposes. An aqueous suspension concentrate, suspo-emulsion, aqueous suspension, capsule suspension and concentrated emulsion which is stable under storage for at least two years is desired, see [0017]. Therefore, Faers teaches the formulation as an in-can ready to use formulation with no need adding additional adjuvants.
Thus, the art teaches use of an agrochemical formulation comprising fungicides, vegetable oils such as rape seed oil methyl ester as drift-reducing agent, alcohol ethoxylates ad spreading agent, copolymer of an acrylate and styrene as a rain-fast additive, additional formulants such as antioxidant and biocides and water/aqueous as a carrier. This combination is not in a single embodiment. However, 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 of making an agricultural formulation comprising a fungicide, a drift-reducing agent, a spreading agent, a rain-fast additive, additional formulants and water as a carrier for the formulation, see MPEP 2143 part (I)(A). The amount of an active ingredient of 200g/l reads on the claimed amount of active ingredient ranging from 5 to 500g/l. The amount of vegetable oils taught is in example 2 is160g/l. Given the generic amounts of vegetable oils used and other ingredients as discussed above, it would have been obvious to one of ordinary skill to have manipulated the amount in order to obtain optimum emulsion properties of the agrochemical formulation as it is held that "[W]here 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), see MPEP 2144.05 IIA. The amount of copolymers of acrylic acid with styrene taught is 30g/l and this amount reads on the claimed amount of rain-fast additives ranging from 5 to 150g/l.
Claims 1, 6, 9, 15, 18, 20 and 23-24 are rejected under 35 U.S.C. 103 as being unpatentable over Faers et al. (US PG Pub. 2020/0315165A1 or corresponding WO-2017/202684A) in view of Zhu et al. (US PG Pub. 2022/0267493 A1).
The teachings of Faers et al. have been discussed above.
While Faers teaches use of mono-and diesters of sulfosuccinate sodium salts, Faers does not teach use of dioctylsulfosuccinate or dioctylsulfosuccinate sodium salt, (claimed as spreading agents in subsection c) of instant claim 1).
Zhu discloses polymeric rheology modifiers stabilizing solid agrochemicals in making solvent formulations comprising fungicides, see Tables 21-22 and Example 22.
Zhu discloses thickened organic liquid compositions comprising an organic liquid and a polymeric rheology modifier wherein the polymeric rheology modifier is obtainable by co-polymerizing at least two of a bicyclic (meth)acrylate ester, an alkyl (meth)acrylate, and an aromatic vinyl monomer (abstract). The aromatic vinyl monomer is styrene ([0015]). Alkyl (meth)acrylate) include lower alkyl (meth)acrylates ([0043]). Lower alkyl (meth)acrylates include methyl (meth)acrylate ([0044]). The polymeric rheology modifier may be synthesized by emulsion polymerization (i.e., b) an emulsion copolymer of an acrylate and a styrene) ([0053]). The polymeric rheology modifier is present in less than 5 wt% of the thickened organic liquid composition (Claim 8). The thickened organic liquid composition may comprise emulsifiers ([0170]) present in typically between 2-30 wt % ([0171]). The emulsifier is selected from the group consisting of anionic surfactants, nonionic surfactant, and combinations thereof (Claim 12). Anionic surfactants include dioctyl sodium sulfosuccinate (i.e., c) one or more spreading agents) and non-ionic surfactants include branched alcohol ethoxylates, see ([0054]). The thickened organic liquid compositions of the disclosure can contain agrochemicals ([0163]). Agrochemicals include any solid chemicals used in agricultural formulations, such as, pesticides, growth inhibitors, fertilizers, micronutrients, and adjuvants, see ([0165]). Suitable pesticides include imidacloprid ([0166]). Drift control agents such as polysaccharides including guar gum and its derivatives are present in the thickened organic liquid composition at a concentration of between 2 to 10 wt % ([0167]). The composition comprises hydroxypropyl guar gum (i.e., a) one or more drift reducing ingredients) ([0198]). The composition may contain additives including defoamers (i.e., f3), dispersants and colorants (i.e., f5) at an amount less than 5% by weight ([0182]). Zhu discloses compositions containing hydroxypropyl guar gum (i.e., a) one or more drift reducing ingredients) ([0198]), dioctyl sodium sulfosuccinate (i.e., c) one or more spreading agents) ([0054]), branched alcohol ethoxylates (i.e., surfactants) ([0054]) and defoamers (i.e., e3) other formulants) ([0182]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have utilized dioctyl sodium sulfosuccinate as an emulsifier (and as spreading agent as claimed) into the agrochemical formulation of Faers et al. One of ordinary skill would have been motivated to do so because Faers et al. teaches use of agrochemical formulation comprising fungicides, herbicides and insecticides and while making an emulsion suggests use of mono-and diesters of sulfosuccinate sodium salts, and Zhu et al. as discussed above, while also disclosing the use of the emulsion comprising dioctyl sodium sulfosuccinate as an emulsifier in making a stabilizing fungicide composition, teaches use of a specific ester such as dioctyl sulfosuccinate and its sodium salt in making the emulsion due to its surfactant properties. 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. Additionally, dioctylsulfosuccinate sodium salt will implicitly possess spreading agent properties as claimed instantly because it is held that "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II.
Regarding the amount of spreading agents such as “c) is present in 25 to 55 %,” Zhu teaches the thickened organic liquid composition may comprise emulsifiers in 2-30 wt %, and the emulsifier comprises 30 wt % to 70 wt % anionic surfactant such as dioctyl sodium sulfosuccinate (i.e., c) one or more spreading agents). Accordingly, the amount of dioctyl sodium sulfosuccinate (i.e., c) may be 21 wt. % when the composition comprises 30% emulsifiers of which 70% is dioctyl sodium sulfosuccinate (i.e., c). 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). Therefore, since 21 wt. % is close to the claimed 25 wt.%, 25 wt.% would have been obvious since one of ordinary skill in the art would have expected them to have the same properties.
Applicant argues that the working examples of Faers describe various compositions incorporating resin stabilized emulsion polymer additives and the effects on wash-off and stability of the described compositions. Even though certain components required in claim 1 may be mentioned in Faers, no specific direction or teaching is included in the specification or working examples to combine the components required in claim 1. Accordingly, applicant respectfully submits there is no clear teaching in Faers of: combining components b), c), and e) as defined in claim 1, including where each component is selected from the list and/or definition of each component in claim 1; and combining component b), c), and e), where all three components are included at the required concentrations. In view of the foregoing, applicant respectfully submits claim 1 and all claims depending thereon are not obvious in view of Faers.
Applicant’s arguments are fully considered but is not persuasive.
These arguments are not persuasive because as discussed in the rejections of record, Faers teaches use of oils of vegetable origin or alkyl esters of these oils and rapeseed oil methyl ester, [ 0172] and [0176] and (these read on the claimed drift -reducing agents in subsection b) of instant claim 1). Faers also teaches use of sunflower oil, rapeseed oil, soybean oil and olive oil, see [0173]. The amount of oils taught in example 2 is 160g/l. Faers teaches use of spreading agents such as ethoxylated branched alcohols (alcohol ethoxylates) and ethoxylated diacetylene-diols, e.g. Surfynol® 4xx-range ( reads on the claimed ethoxylated diacetylene-diols with 1 to 6 EO) and mono-and diesters of sulfosuccinate sodium salts, see [0157], [0165] and [0171], (reading on spreading agents claimed in subsection c) of instant claim 1). Faers teaches use of stabilizers such as copolymers of acrylic acid with styrene with Tg of more than 30°C, (reads on the claimed rain-fast additives as claimed in subsection e) of claim 1), see page 7, lines 12-13. The copolymers of 75% ethyl-hexyl acrylate and 25% styrene can be used, see [0117]. Thus, the art teaches use of an agrochemical formulation comprising fungicides, vegetable oils such as rape seed oil methyl ester as drift-reducing agent, alcohol ethoxylates ad spreading agent, copolymer of an acrylate and styrene as a rain-fast additive, additional formulants such as antioxidant and biocides and water/aqueous as a carrier. It is well settled that it is a matter of obviousness for one of ordinary skill in the art to select a particular component from among many disclosed by the prior art as long as it is taught that the selection will result in the disclosed effect, even when the possible selections number 1200 or in the thousands. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985). Regarding claims 23-24, the rejections of record above teach all the components and generic amounts, therefore optimization of the amount would have been obvious to one of ordinary skill in the art for optimum results use for foliar application and their application in aqueous crop protection flowable formulations for controlling agricultural pests, weeds and diseases and reducing the wash off of active ingredients by rainfall. Zhu was cited for using dioctylsulfosuccinate or sodium salt thereof.
Applicant argues that formulations containing specific drift reducing agents in combination with selected spreading agents and rain-fast additives agents and at specific concentrations as claimed, wherein such formulations provide minimized or at least maintained drift while simultaneously providing increased coverage and increased diameter of spray deposits at low spray volumes, while maintaining or improving spreading, biological efficacy and rain fastness.
In reply, this argument is not persuasive because the reason or motivation to modify the reference may suggest what the inventor has done, but for a different purpose. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.
Nonstatutory double patenting rejection
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-3, 5-6, 8-10, 13-15, 17-18, 20 and 23-24 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18/251,509 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims recite an agrochemical formulation comprising: a) one or more active ingredients selected from fungicides, herbicides or insecticides, b) one or more drift reducing ingredients, c) one or more spreading agents, e) one or more rain-fast additives, f) optional other formulants, and g) one or more carriers to volume, comprising the components a) to g) in the following amounts; a) from 5 to 500 g/l, b) from 0.01 to 50 g/l, and in case of b) being a vegetable oil or ester from in 1 to 50 g/l, in case of b) being a drift reducing polymer in 0.05 to 3 g/l, c) from 5 to 150 g/l, e) from 5 to 150 g/l and g) carrier to volume, wherein b) is selected from the group consisting of poly(ethylene) oxides with an average molecular weight from 0.5 to 12 million g/mol, hydroxypropyl guar, vegetable oils, vegetable oil esters and diesters including esters with glycerine and propyleneglycol, and combinations thereof, wherein c) is selected from the group consisting of polyalkyleneoxide modified heptamethyltrisiloxanes, dioctylsulfosuccinate, alcohol ethoxylates, ethoxylated diacetylene-diols with 1 to 6 EO, and combinations thereof, and wherein e) is an emulsion polymer or polymer dispersion with Tg in the range from - 100°C to 30°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, and combinations thereof, and said styrene is selected from the group consisting of styrene, tert-butyl styrene, para-methyl styrene, and combinations thereof.
The copending claims recite an agrochemical formulation comprising: a) one or more active ingredients selected from the group consisting of fungicides, herbicides, insecticides, and combinations thereof, b) one or more drift reducing ingredients, c) one or more spreading agents, d) one or more uptake enhancing agents, f) optional other formulants, and g) one or more carriers to volume, comprising the components a) to d), f), and g) in the following amounts: a) from 5 to 500 g/l, b) from 0.01 to 50 g/l, c) from 5 to 150 g/l, d) from 10 to 180 g/l, and g) carrier to volume, wherein b) is selected from the group consisting of poly(ethylene) oxides with an average molecular weight from 0.5 to 12 million g/mol, hydroxypropyl guar, vegetable oils, and vegetable oil esters and diesters including esters with glycerine and propyleneglycol, and combinations thereof, wherein c) is selected from the group consisting of polyalkyleneoxide modified heptamethyltrisiloxanes, dioctylsulfosuccinate, ethoxylated diacetylene-diols with 1 to 6 EQ, and combinations thereof, and wherein d) is selected from the group consisting of ethoxylated alcohols, propoxy- ethoxylated alcohols, ethoxylated carboxylic acids, propoxy-ethoxylated carboxylic acids, ethoxylated mono-, di- or triesters of glycerine comprising fatty acids with 8-18 carbon atoms and an average of 5-40 EO units, and combinations thereof.
The only difference in the copending claims and the instant claims is that the copending claims recite an additional ingredient d) as one or more uptake enhancing agents. While the instant “comprising” language of the instant claims do not preclude reading any other component into the claims, the copending claims include ethoxylated alcohols as an uptake enhancing agent which reads on the instant alcohol ethoxylates which has been claimed as a spreading agent. Since the property of an agent cannot be separated from its chemistry, the alcohol ethoxylates of instant claims will also possess the uptake enhancing effect. "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II.
Additionally, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). Furthermore, “It would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (Il)).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-3, 5-6, 8-10, 13-15, 17-18, 20 and 23-24 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 and 25-28 of copending Application No. 18/251,855 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims recite an agrochemical formulation comprising: a) one or more active ingredients selected from fungicides, herbicides or insecticides, b) one or more drift reducing ingredients, c) one or more spreading agents, e) one or more rain-fast additives, f) optional other formulants, and g) one or more carriers to volume, comprising the components a) to g) in the following amounts; a) from 5 to 500 g/l, b) from 0.01 to 50 g/l, and in case of b) being a vegetable oil or ester from in 1 to 50 g/l, in case of b) being a drift reducing polymer in 0.05 to 3 g/l, c) from 5 to 150 g/l, e) from 5 to 150 g/l and g) carrier to volume, wherein b) is selected from the group consisting of poly(ethylene) oxides with an average molecular weight from 0.5 to 12 million g/mol, hydroxypropyl guar, vegetable oils, vegetable oil esters and diesters including esters with glycerine and propyleneglycol, and combinations thereof, wherein c) is selected from the group consisting of polyalkyleneoxide modified heptamethyltrisiloxanes, dioctylsulfosuccinate, alcohol ethoxylates, ethoxylated diacetylene-diols with 1 to 6 EO, and combinations thereof, and wherein e) is an emulsion polymer or polymer dispersion with Tg in the range from - 100°C to 30°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, and combinations thereof, and said styrene is selected from the group consisting of styrene, tert-butyl styrene, para-methyl styrene, and combinations thereof.
The copending claims recite an agrochemical formulation comprising a) one or more active ingredients, b) one or more drift reducing ingredients c) one or more spreading agents, d) one or more uptake enhancing agents, e) one or more rain-fast additives, f) optional other formulants, g) one or more carriers to volume, comprising the components a) to g) in the following amounts a) from 5 to 500 g/, b) from 0.01 to 50 g/l, and in case of b) being an vegetable oil or ester from in 1 to 50 g/l, in case of b) being a drift reducing polymer in 0.05 to 3 g/l, , c) from 5 to 150 g/l, d) from 10 to 180 g/l, e) from 5 to 150 g/I, g) carrier to volume.
The difference between the instant claims and the copending claims is that the copending claims recite one or more uptake enhancing agents in subsection d) of claim 1. While the instant “comprising” language of the instant claims do not preclude reading any other component into the claims, the copending claims include ethoxylated alcohols as an uptake enhancing agent which reads on the instant alcohol ethoxylates which has been claimed as a spreading agent. Since the property of an agent cannot be separated from its chemistry, the alcohol ethoxylates of instant claims will also possess the uptake enhancing effect. "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II.
Additionally, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). Furthermore, “It would have been prima facie obvious for one of ordinary skill in the art to optimize the amounts through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (Il)).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-3, 5-6, 8-10, 13-15, 17-18, 20 and 23-24 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18/251,506 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims recite an agrochemical formulation comprising: a) one or more active ingredients selected from fungicides, herbicides or insecticides, b) one or more drift reducing ingredients, c) one or more spreading agents, e) one or more rain-fast additives, f) optional other formulants, and g) one or more carriers to volume, comprising the components a) to g) in the following amounts; a) from 5 to 500 g/l, b) from 0.01 to 50 g/l, and in case of b) being a vegetable oil or ester from in 1 to 50 g/l, in case of b) being a drift reducing polymer in 0.05 to 3 g/l, c) from 5 to 150 g/l, e) from 5 to 150 g/l and g) carrier to volume, wherein b) is selected from the group consisting of poly(ethylene) oxides with an average molecular weight from 0.5 to 12 million g/mol, hydroxypropyl guar, vegetable oils, vegetable oil esters and diesters including esters with glycerine and propyleneglycol, and combinations thereof, wherein c) is selected from the group consisting of polyalkyleneoxide modified heptamethyltrisiloxanes, dioctylsulfosuccinate, alcohol ethoxylates, ethoxylated diacetylene-diols with 1 to 6 EO, and combinations thereof, and wherein e) is an emulsion polymer or polymer dispersion with Tg in the range from - 100°C to 30°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, and combinations thereof, and said styrene is selected from the group consisting of styrene, tert-butyl styrene, para-methyl styrene, and combinations thereof.
The copending claims recite an agrochemical formulation comprising a) one or more active ingredients, b) one or more drift reducing ingredients d) One or more uptake enhancing agents, e) one or more rain-fast additives, f) optional other formulants, g) one or more carriers to volume, comprising the components a) to g) in the following amounts a) from 5 to 500 g/, b) from 0.01 to 50 g/l, and in case of b) being an vegetable oil or ester from in 1 to 50 g/l, in case of b) being a drift reducing polymer in 0.05 to 3 g/I, d) from 10 to 180 g/l, e) from 5 to 150 g/I, g) carrier to volume.
The copending claims do not recite one or more spreading agents as claimed in subsection c) of instant claims. However, the uptake enhancing agent, ethoxylated alcohol of copending claim 6 reads on the instant spreading agent claimed as alcohol ethoxylates in claim 1. Since the property of an agent cannot be separated from its chemistry, the ethoxylated alcohol of copending claims will also possess the spreading agent property of instant claims. "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II.
Additionally, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). Furthermore, “It would have been prima facie obvious for one of ordinary skill in the art to optimize the amounts through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (Il)).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-3, 5-6, 8-10, 13-15, 17-18, 20 and 23-24 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-5, 7-17, and 21 of copending Application No. 18/251,409 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims recite an agrochemical formulation comprising: a) one or more active ingredients selected from fungicides, herbicides or insecticides, b) one or more drift reducing ingredients, c) one or more spreading agents, e) one or more rain-fast additives, f) optional other formulants, and g) one or more carriers to volume, comprising the components a) to g) in the following amounts; a) from 5 to 500 g/l, b) from 0.01 to 50 g/l, and in case of b) being a vegetable oil or ester from in 1 to 50 g/l, in case of b) being a drift reducing polymer in 0.05 to 3 g/l, c) from 5 to 150 g/l, e) from 5 to 150 g/l and g) carrier to volume, wherein b) is selected from the group consisting of poly(ethylene) oxides with an average molecular weight from 0.5 to 12 million g/mol, hydroxypropyl guar, vegetable oils, vegetable oil esters and diesters including esters with glycerine and propyleneglycol, and combinations thereof, wherein c) is selected from the group consisting of polyalkyleneoxide modified heptamethyltrisiloxanes, dioctylsulfosuccinate, alcohol ethoxylates, ethoxylated diacetylene-diols with 1 to 6 EO, and combinations thereof, and wherein e) is an emulsion polymer or polymer dispersion with Tg in the range from - 100°C to 30°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, and combinations thereof, and said styrene is selected from the group consisting of styrene, tert-butyl styrene, para-methyl styrene, and combinations thereof.
The copending claims recite an agricultural adjuvant composition for tank-mixture with a crop protection product comprising a) one or more drift reducing ingredients present in an amount from 5 to 25%, b) optionally one or more rain-fast additives, c) one or more spreading agents present in an amount of 25 to 55%, d) one or more uptake enhancing agents, e) other formulants, selected from a non-ionic surfactant and/or ionic surfactant (e1), and/or a rheological modifier (e2), and/or an antifoam substance (e3), and/or an antifreeze agent (e4), and f) optionally one or more carriers to 100%, wherein: a) is selected from the group consisting of poly(ethylene oxides) having an average molecular weight optionally from 0.5 to 12 million g/mol, hydroxypropyl guar, vegetable oils, vegetable oil esters and diesters, and combinations thereof, c) is selected from the group consisting of polyalkyleneoxide modified heptamethyltrisiloxanes, dioctylsulfosuccinate, ethoxylated diacetylene-diols with 1 to 6 EO and 1-hexanol, 3,5,5-trimethyl-, ethoxylated, propoxylated, and combinations thereof, and d) is selected from the group consisting of ethoxylated alcohols, propoxy-ethoxylated alcohols, ethoxylated carboxylic acids, propoxy-ethoxylated carboxylic acids, or ethoxylated mono-, di- or triesters of glycerine comprising fatty acids with 8-18 carbon atoms and an average of 5-40 EO units.
The only difference in the copending claims and the instant claims is that the copending claims recite an additional ingredient d) as one or more uptake enhancing agents. While the instant “comprising” language of the instant claims do not preclude reading any other component into the claims, the copending claims include ethoxylated alcohols as an uptake enhancing agent which reads on the instant alcohol ethoxylates which has been claimed as a spreading agent. Since the property of an agent cannot be separated from its chemistry, the alcohol ethoxylates of instant claims will also possess the uptake enhancing effect. "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II.
Additionally, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). Furthermore, “It would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (Il)).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-3, 5-6, 8-10, 13-15, 17-18, 20 and 23-24 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 5-12 and 14 of copending Application No. 18/251,413 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims recite an agrochemical formulation comprising: a) one or more active ingredients selected from fungicides, herbicides or insecticides, b) one or more drift reducing ingredients, c) one or more spreading agents, e) one or more rain-fast additives, f) optional other formulants, and g) one or more carriers to volume, comprising the components a) to g) in the following amounts; a) from 5 to 500 g/l, b) from 0.01 to 50 g/l, and in case of b) being a vegetable oil or ester from in 1 to 50 g/l, in case of b) being a drift reducing polymer in 0.05 to 3 g/l, c) from 5 to 150 g/l, e) from 5 to 150 g/l and g) carrier to volume, wherein b) is selected from the group consisting of poly(ethylene) oxides with an average molecular weight from 0.5 to 12 million g/mol, hydroxypropyl guar, vegetable oils, vegetable oil esters and diesters including esters with glycerine and propyleneglycol, and combinations thereof, wherein c) is selected from the group consisting of polyalkyleneoxide modified heptamethyltrisiloxanes, dioctylsulfosuccinate, alcohol ethoxylates, ethoxylated diacetylene-diols with 1 to 6 EO, and combinations thereof, and wherein e) is an emulsion polymer or polymer dispersion with Tg in the range from - 100°C to 30°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, and combinations thereof, and said styrene is selected from the group consisting of styrene, tert-butyl styrene, para-methyl styrene, and combinations thereof.
The copending claims recite an agricultural adjuvant composition for tank-mixture with a crop protection product comprising: a) One or more drift reducing ingredients_ present in an amount from about 2 to about 25% by weight, b) One or more rain-fast additives, d) One or more uptake enhancing agents present in an amount from about 30 to about 55% by weight, e) other formulants, and f) optionally one or more carriers, wherein a) is selected from poly(ethylene oxides) having an average molecular weight from 0.5 to 12 million g/mol, a hydroxypropyl guar, vegetable oils and vegetable oil esters and diesters, b) is an emulsion polymer or polymer dispersion with a glass transition temperature (Tg) of from -100°C to 30°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 d) is selected from the group comprising ethoxylated alcohols, propoxy-ethoxylated alcohols, ethoxylated carboxylic acids, propoxy-ethoxylated carboxylic acids, or ethoxylated mono-, di- or triesters of glycerine comprising fatty acids with 8-18 carbon atoms and an average of 5-40 EO units.
The copending claims do not recite the spreading agents as recited in instant claim 1 subsection c). However, the ethoxylated alcohol of uptake enhancing agent of copending claim reads on the instantly claimed spreading agent, alcohol ethoxylates. "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II.
Additionally, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). Furthermore, “It would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (Il)).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Applicant "notes that these rejections are premature, until such time as one of the applications has issued". In reply, a request to hold a rejection in abeyance is not a proper response to a rejection. A request to hold a matter in abeyance may be made only in response to an objection or requirements as to form. See MPEP 37 C.F.R. 1.111(b) and 7.14.02. Thus, the double patenting rejection of record is maintained as no action regarding this rejection has been taken by Applicant at this time.
Action is final
THIS ACTION IS MADE FINAL. 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.
Correspondence
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/SNIGDHA MAEWALL/Primary Examiner, Art Unit 1612
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