DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined
under the first inventor to file provisions of the AIA .
In the event the determination of the status of the application as subject to AIA 35
U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any
correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will
not be considered a new ground of rejection if the prior art relied upon, and the rationale
supporting the rejection, would be the same under either status.
Claim Status
Applicant’s preliminary amendment of 03/25/2026 is acknowledged. Claims 1-28 are amended. Claims 1-28 are currently pending.
Priority
The instant application is a 371 of PCT/EP2021/080846 filed on 11/05/2021 and claims foreign priority to EP20206336.8 filed on 11/08/2020 as reflected in the filing receipt dated on 09/26/2023. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 05/04/2023, 08/06/2025, and 02/27/2026 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements have been considered by the Examiner.
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-21, 23, and 25-28, in the reply filed on 03/25/2026 is acknowledged. Applicant’s election of the following species is also acknowledged:
a) One or more active ingredients: fluoxapiprolin (5 to 500 g/L);
b) One or more drift reducing agents: sunflower oil (1 to 50 g/L);
c) One or more spreading agents: a dioctyl sulfosuccinate sodium salt (5 to 150 g/L);
d) One or more uptake enhancing agents: an ethoxylated mono- or diester of glycerine comprising fatty acids with 8-18 carbon atoms and an average of 10-40 EO units (10 to 180 g/L);
e) One or more rain-fast additives: a copolymer of an acrylate and a styrene (5 to 50 g/L);
f) Optional other formulants: a rheological modifier (f2), a polysaccharaide (2 to 5 g/L); an antifreeze agent (f4), glycerine (90 to 110 g/L); an antifoam agent (f3) (3 to 5 g/L);
g) One or more carriers to volume: water.
The traversal is on the ground(s) that Burrow et al. (EP1064844A1; published: 01/03/2001; PTO-892 of 01/27/2026) does not teach an agricultural formulation including each of components a) to e) and g) at the concentration ranges required in claim 1. This is not found persuasive in view of Faers et al. (US20200315165A1; published: 10/08/2020; IDS of 05/04/2023), which renders obvious all elements of the instantly claimed agrochemical formulation as discussed in detail in the prior art rejections below. Because the technical feature of an agrochemical formulation comprising the claimed elements does not make a contribution over the prior art, it is not a special technical feature.
Thus, Groups I-III lack unity of invention.
The requirement is still deemed proper and is therefore made FINAL.
Claims 1-28 are pending in the application. Claims 4, 14, 22, and 24-28 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention/species, there being no allowable generic or linking claim. The Examiner notes that because Applicant was requested to elect a specifically disclosed species of agrochemical formulation, indicating all components in the formulation, Applicant’s claim 25, which requires non-elected species of components a) and f), is collectively drawn to a non-elected species of agrochemical formulation.
Applicant timely traversed the restriction (election) requirement in the reply filed on 03/25/2026. Accordingly, claims 1-3, 5-13, 15-21, and 23 are being examined on the merits herein.
Claim Objections
Claims 1, 2, 6-7, 13, 15-17, 19-21, and 23 are objected to because of the following informalities:
Claim 1 recites at least five instances of the limitation “One or more” and at least one instance of the limitation “Optional Other formulants”, which are inappropriately capitalized and should read “one or more” and “optional other formulants”, respectively.
Claim 1 recites the singular limitation “diester”, which is a typographical error as evidenced by instant claim 3 and should read “diesters”.
Claim 1 recites “, wherein b) is”, “, wherein c) is”, and “, wherein d) is”, which are redundant and should be removed to simplify the claim language as reflected in part a) of the claim. For example, part b) of claim 1 should read “b) one or more drift reducing ingredients selected from…”. Consistent with this formatting, part e) should be amended to read “one or more rain-fast additives selected from an emulsion polymer or a polymer dispersion…”.
Claims 1 recites “poly(ethylene) oxides”, wherein the closing parenthesis is misplaced and should read “poly(ethylene oxide)s”.
Claim 1 recites the terms “EO” (at least twice) and “Tg”, which are not defined in the claims. When an acronym or abbreviation is used in a claim set, it should be defined the first time it appears in the claims.
Claim 1 recites the limitation “in case of b) being an vegetable oil”, which is grammatically incorrect and should read “in case of being a vegetable oil”.
Claim 1 recites an extraneous comma between the last recited concentration of component b) and the concentration of component c), which should be removed.
Claim 1 is missing colons following the recitations “An agrochemical formulation comprising” and “comprising the components a) to e) and g) in the following amounts”, and is missing the term “and” between the recited concentrations of e) and g), which should be added.
Claim 1 recites the limitation “g) carrier to volume”, which is redundant and should be removed.
Claim 2 recites the limitation “at least two out of”. For clarity, the claim should recite “at least two formulants selected from”.
Claim 2 is missing a colon following the recitation “at least one of” and is missing the term “or” following the recitation “f4) from 5 to 150 g/l,”.
Claim 2 ends with a comma, which is a typographical error and should be a period.
Claim 5 recites the limitation “and is present 1 to 50 g/l”, which contains a grammatical error and is also redundant, as claim 5 depends from claim 1 which already requires that b) is present in an amount of 1 to 50 g/l in the case of b) being a vegetable oil or ester.
Claims 6 and 7 each recite the term “EO”, which is not defined in the claims. When an acronym or abbreviation is used in a claim set, it should be defined the first time it appears in the claims.
Claim 13 is objected to under 37 CFR 1.75(c) as being in improper form because a multiple dependent claim should refer to other claims in the alternative only. See MPEP § 608.01(n).
Claims 13 contains an extraneous comma before the period at the end of the claim, which should be removed.
Claim 15 recites extraneous commas between the terms “isotianil” and “spirotetramat” and between the terms “ethiprole” and “imidacloprid”, which should be removed.
Claim 16 is missing a colon following the recitation “in the following amounts”, which should be added.
Claim 17 recites the limitation “g) carrier to volume”, which is redundant and should be removed, and contains an extraneous comma before the period at the end of the claim, which should be removed.
Claims 19 and 20 are each missing the term “and” following the recited concentrations/doses of additive d) and additive e), which should be added, and each contain an extraneous comma before the period at the end of the claim, which should be removed.
Claim 19 recites the limitation “wherein the concentration of the additives b) to e) in the spray liquid is from, Additive b) from…”, which contains grammatical errors and at least five instances of the term “Additive”, which is inappropriately capitalized. For clarity, the claim should read “wherein the concentrations of the additives b) to e) in the spray liquid are: b) from…”.
Claim 20 recites the limitation “wherein the dose of the additives b) to e) per ha is from, Additive b) from…”, which contains grammatical errors and at least five instances of the term “Additive”, which is inappropriately capitalized. For clarity, the claim should read “wherein the doses of the additives b) to e) per ha are: b) from…”.
Claim 21 recites the limitation “wherein the concentration…the concentration…, and the dose…is combined in the following way”, which is grammatically incorrect and should read “wherein the concentrations…the concentrations…and the doses…are combined in the following way”.
Claim 21 is missing the term “and” following the recited concentrations/doses of additive d) and additive e), which should be added.
Claim 23 recites “A product comprising an agrochemical formulation according to claim 1”. Because the claim is referring to the formulation defined in claim 1, the claim should recite “A product comprising the agrochemical formulation according to claim 1”.
Claim 23 recites the limitation “capaple”, which is a typographical error and should read “capable”.
Appropriate correction is required.
Drawings
The drawings are objected to because 37 CFR 1.84(u)(1) (see MPEP 507(e)) states: Where only a single view is used in an application to illustrate the claimed invention, it must not be numbered and the abbreviation "FIG." must not appear. Here, Applicant’s drawings refer to “Figure 1”. The Examiner notes that changes in the drawings must be reflected in Applicant’s instant specification.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-3, 5-13, 15-21, and 23 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1, 3, and 5 each recite the limitation “vegetable oils and vegetable oil esters and diester including esters with glycerine and propylene glycol”. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, “vegetable oil esters and diester” are species of vegetable oils, and “esters with glycerine and propylene glycol” are species of both vegetable oils and vegetable oil esters. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. Claims 2-3, 5-13, 15-21, and 23 are rejected by virtue of their dependency on claim 1, as they fail to resolve the ambiguity in question.
Claims 1 and 5 each recite the limitation “selected from the group comprising…”. The phrase “selected from” followed by a list indicates a Markush grouping, which by nature is closed claim language. Note: MPEP 2111.03 and 2173.05(h). However, the inclusion of the open claim language “comprising” makes the metes and bounds of what is in the group versus what is excluded from the group unclear. Therefore, the scope of the claim is indefinite. Proper Markush language is “selected from the group consisting of”. The Examiner suggests rewording the claims to include the Markush language. Claims 2-3, 5-13, 15-21, and 23 are rejected by virtue of their dependency on claim 1, as they fail to resolve the ambiguity in question.
Claim 1 recites the limitation “b) from 0.01 to 50 g/l, and in case of b) being an vegetable oil or ester from 1 to 50 g/l, in case of b) being a drift reducing polymer from 0.05 to [[3]] 10 g/l”. Because the claim requires that the component b) is selected from poly(ethylene) oxides and hydroxypropyl guar, which are drift reducing polymers, and vegetable oils and esters, it is unclear whether the concentration of component b) is actually 0.01 to 50 g/l or whether the concentration is limited to those recited in the “in case of” clauses. Further, are other drift reducing polymers permitted? Therefore, the scope of the claim is indefinite. Claims 2-3, 5-13, 15-21, and 23 are rejected by virtue of their dependency on claim 1, as they fail to resolve the ambiguity in question.
Claim 13 recites the “The agrochemical formulation according to claim 1, wherein b) is present according to claim 5”. Because claim 13 improperly depends on multiple claims,
Claim 16 recites the limitation “comprising the components a) to e) and f) in the following amounts” while also reciting “g) carrier to volume”, which is an amount. Because the claim specifies that the composition comprises components a) to e) and f) in certain amounts, but does not include g) in this limitation, it is unclear whether the recited amount of g) is required or merely exemplary/suggested. Therefore, the scope of the claim is indefinite.
Claim 16 recites the limitations f1), f2), f3, f4, and f5). There is insufficient antecedent basis for these limitations in the claims. Claim 16 depends from claim 1, which does not recite f1), f2), f3, f4, or f5). Therefore, it is unclear what structures correspond to these components. Additionally, f) of claim 1 is optional, so it is further unclear whether any or all of f1), f2), f3, f4, or f5) are actually required. Therefore, the scope of the claim is indefinite. For the purposes of compact prosecution, the Examiner is interpreting f1), f2), f3), f4), and f5) to have the same definition as those which are recited at the same concentrations in claim 2.
Claim 19 recites the limitations “the spray liquid” and “additive”. There is insufficient antecedent basis for these limitations in the claims. Claim 19 depends from claim 1, which does not recite a spray liquid or additives. The scope of the claim is indefinite because it is unclear whether “the spray liquid” refers to the agricultural formulation recited in claim 1 or some other, previously unrecited formulation and whether “additive” refers to the components recited in claim 1 or some other, previously unrecited additives. For the purposes of compact prosecution, the Examiner is interpreting the claim to mean that the agricultural formulation according to claim 1 is a spray liquid, and that the additives correspond to the components of claim 1.
Claim 19 recites the limitations “c) from 0.25 to 5 g/l”, “d) from 1 to 20 g/l” and “e) from 0.5 to 10 g/l”. However, claim 19 depends from claim 1, wherein the lower limits of the concentrations of c), d), and e) are 5 g/l, 10 g/l, and 5 g/l, respectively. Because claim 19 recites concentrations for c), d), and e) which fall below the lower limits set forth in claim 1, the claim improperly broadens the scope of the claim upon which it depends and is, therefore, indefinite.
Claims 19 and 20 each recite the limitations “where b) is a polymer” and “where b) is an oil”. The scope of the claim is indefinite because it is unclear whether “a polymer” refers to the poly(ethylene) oxides and/or the hydroxypropyl guar of claim 1 or to other polymers, which would improperly broaden the scope of the claim, and whether “an oil” refers to the vegetable oils and/or the vegetable oil esters and diester of claim 1 or to other oils, which would improperly broaden the scope of the claim. Further, use of the term “where” rather than “wherein” or “when” makes it unclear whether each type of additive b) is simultaneously required in the claimed amounts or whether the amounts are conditional to the type of additive b) that is present. For example, when b) is a polymer, the concentration is from 0.005 to 1 g/l, but when b) is an oil, the concentration is from 0.01 to 5 g/l. Therefore, the scope of each claim is indefinite. In view of Applicant’s species election in which b) is a species of vegetable oil, the Examiner is interpreting the claim to mean that “a polymer” and “an oil” refer only to the specific species recited in claim 1, and that the amounts are conditional to the type of additive in the formulation (i.e., both are not required simultaneously).
Claim 20 recites the limitations “per ha” and “additive”. There is insufficient antecedent basis for these limitations in the claims. Claim 19 depends from claim 1, which does not recite a method of application involving hectares or additives. The scope of the claim is indefinite because it is unclear how the formulation additives can exist in doses per ha when the formulation has not been applied to any land, crop, plant, etc. and whether “additive” refers to the components recited in claim 1 or some other, previously unrecited additives. For the purposes of compact prosecution and because the claim depends from claim 1, the Examiner is interpreting the claim to mean that the additives correspond to the components of claim 1, and that the additives must be capable of being applied at the claimed doses.
Claim 21 is rejected for substantially the same reasons as applied to claims 19 and 20 above, as it also recites the limitations “the spray liquid”, “per ha”, “additive[s]”, “a polymer”, and “an oil” and also recites the concentrations “c)…from 0.5 to 4 g/l”, “d)…from 2 to 8 g/l”, and “e)…from 1 to 6 g/l”, which fall below the lower limits set forth in claim 1, rendering the claim indefinite.
Claim Interpretation
Claim 13 is a product claim that recites the limitation “and is applied from…”. The Examiner is interpreting the limitation as an intended use of the claimed formulation.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3, 5, 7-13, 15-21, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Faers et al. (US20200315165A1; published: 10/08/2020; IDS of 05/04/2023) as evidenced by Central Insecticides Board (Minutes of the 57th Meeting of the CIB, p. 1-39; published: 12/16/2019; PTO-892 of instant action).
Faers, throughout the reference, teaches agrochemical compositions comprising: a) an aqueous dispersion of at least one active compound, which is solid at room temperature; b) an emulsion polymer system comprising a core polymer having a Tg in the range from -100°C to 10°C; c) one or more additives selected from non-ionic or anionic surfactants or dispersing aids; d) one or more rheological modifiers; e) one or more other formulants; and f) one or more penetration promoters, wetting agents, spreading agents, and/or retention agents [abstract; claims].
In an exemplary embodiment, Faers discloses a formulation comprising: 200 g/l fluopicolide; 12 g/l non-ionic dispersants; 6 g/l anionic dispersants; 2.2 g/l rheological modifier; 2.6 g/l biocides; 100 g/l antifreeze; 2 g/l antifoam; 50 g/l additive which corresponds to emulsion polymer (20), which comprises a core polymer of styrene and 2-ethylhexyl acrylate (2-EHA); and water to volume [0221-0222, Example 10, Table 12; 0141, Table 1; 0111].
Regarding a) of claims 1, 9, 15, and 16: The fluopicolide reads on the instantly claimed one or more active ingredients as evidenced by instant claim 15, and the amount of fluopicolide lies within and thus reads on the instantly claimed ranges.
Regarding Applicant’s elected species of a), Faers teaches that 2-{3-[2-(1-{[3,5-bis(difluoromethyl)-1H-pyrazol-1-yl]acetyl}-piperidin-4-yl)-1,3-thiazol-4-yl]-4,5-dihydro-1,2-oxazol-5-yl}-3-chlorophenyl methanesulfonate, which corresponds to fluoxapiprolin as evidenced by Central Insecticide Board [pg. 16-17], is a preferred fungicide along with fluopicolide [0045-0046]. Therefore, it would have been obvious to one of ordinary skill in the art to further include fluoxapiprolin according to known methods to yield the predictable result of an agrochemical formulation with a more comprehensive fungicidal effect.
Regarding b), c), and d) of claims 1, 3, 5, 7, 10, 11, 13, and 16: The reference teaches that preferred penetration promoters, wetting agents, spreading agents, and/or retention agents f) include: organomodified polysiloxanes, mono- and diesters of sulfosuccinate Na salts with branched or linear alcohols comprising 1-10 carbon atoms, ethoxylated mono- or diesters of glycerine comprising fatty acids with 8-18 carbon atoms and an average of 10-40 EO units, ethoxylated diacetylene-diols, propoxyethoxylated alcohols, and ethoxylated alcohols [0171]. The reference teaches that the composition can include one or more oils of vegetable, mineral, and animal origin that function as penetration promoters, and explicitly names sunflower oil as an example [0172-0173].
It would have been obvious to one of ordinary skill in the art to modify Faers’ Example 10 formulation by further including sunflower oil corresponding to instant component b), ethoxylated alcohols corresponding to instant component c), and ethoxylated mono- or diesters of glycerine comprising fatty acids with 8-18 carbon atoms and an average of 10-40 EO units corresponding to instant component d) as the f) one or more penetration promoters, wetting agents, spreading agents, and/or retention agents. It would have been obvious to make the combination since all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP 2134(I)(A).
Regarding the instantly claimed amounts of b), c), and d), in another exemplary embodiment, the reference teaches penetration promoters present in an amount of 206 g/l [0218, example 9]. While the Faers as silent as to the individual concentrations of compounds encompassed in this general amount, it would have been obvious to one of ordinary skill in the art to manipulate the relative amounts of penetration promoters within the formulation to achieve a desired penetration effect. 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). Given that Applicant did not point out the criticality of the concentrations of components b), c), and d) of the invention, it is concluded that the normal desire of scientists or artisans to improve upon what is already generally known would provide the motivation to determine where in a disclosed set of ranges is the optimum concentration. NOTE: MPEP 2144.05.
Regarding e) of claims 1, 8, 12, and 16: The emulsion polymer (20), which as discussed above comprises a core polymer of styrene and 2-ethylhexyl acrylate (2-EHA) and has a Tg in the range from -100°C to 10°C, reads on the instantly claimed one or more rain-fast additives. The amount of emulsion polymer (20) lies within and thus reads on the instantly claimed ranges.
Regarding f) of claims 1, 2, and 16: The non-ionic and anionic dispersants (also referred to as “surfactants” in the reference claims) read on instant component f1), the rheological modifier reads on instant component f2), the antifoam reads on instant component f3), the antifreeze reads on instant component f4), and the biocides read on instant component f5). The amounts of each component each lie within and thus read on their respective instantly claimed ranges.
Regarding Applicant’s elected species of f2) and f4), Faers explicitly names polysaccharides as exemplary rheological modifiers and glycerine as an exemplary antifreeze agent [0145-0146; 0152]. Thus, it would have been obvious to use these as the specific rheological modifier and antifreeze agent in the formulation since all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP 2134(I)(A).
Regarding Applicant’s elected concentration of f3), while 2 g/l closely approaches the instantly claimed range, Faers also discloses several exemplary embodiments comprising antifoam within the range of 3 to 5 g/l [0200, Example 3; 0230, Recipes 2-3]. Therefore, it would have been obvious to manipulate the amount of antifoam to achieve the desired antifoaming effect.
Regarding g) of claims 1 and 16: The water to volume reads on the instantly claimed carrier to volume as evidenced by instant claim 25, wherein the water is the carrier.
Regarding claims 13 and 17: Faers further teaches that the formulations can be converted to spray liquids by dilution with water to be applied by customary methods, i.e., by spraying, at an application rate within a relatively wide range guided by the particular actives in the formulation [0177-0178]. The recitations “is applied from 0.1 g/ha to 50 g/ha” in instant claim 13 and “is capable of being applied at a spray volume of between 1 and 30 1/ha” in instant claim 17 are intended uses of the claimed agricultural formulation. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. Since the structure of the formulation of Faers, which comprises the component b) as instantly claimed, is capable of being formulated as a spray liquid and applied at the dose and/or spray volume as claimed, then it meets the claim. Note: MPEP 2111.02.
Regarding claim 18: Faers teaches that 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 [0017]. Therefore, Faers teaches the formulation as a storage-stable, in-can, and ready-to-use formulation with no need to add additional adjuvants or other ingredients.
Regarding claim 19: As discussed above, Faers teaches that the formulations can be converted to spray liquids by dilution with water to be applied by customary methods, i.e., by spraying. The reference further teaches that the compositions should have excellent rainfastness, crop safety, and reduced phytotoxicity [0018]. Therefore, it would have been obvious to one of ordinary skill in the art to dilute the prior art formulation, including components b) to e), to whatever amount is necessary to produce a spray liquid comprising effective concentrations for achieving an appropriate antifungal and rainfastness effect while ensuring environmental safety.
Regarding claim 20: As discussed above in relation to 112(b), the claim is interpreted to mean that the components b) to e) must be capable of being applied at the claimed doses. Since the structure of the formulation of Faers is capable of being formulated as a spray liquid wherein the components b) to e) can be applied at the doses as claimed, then it meets the claim. Note: MPEP 2111.02.
Regarding claim 21: As discussed above in relation to instant claim 1, Faers renders obvious the concentrations of instant components b) to e) in the formulation. Regarding the concentrations of b) to e) in the spray liquid, the concentrations are rendered obvious for the same reasons as applied to instant claim 19 above. Regarding the doses of b) to e) per ha recited, because the components in the formulation of Faers are capable of being applied at the instantly claimed doses, as discussed above in relation to instant claim 20, the prior art formulation meets the claim.
Regarding claim 23: Regarding the limitation “adapted for…organisms”, Faers further teaches products comprising the agrochemical formulation which can be used for foliar application and to control an agricultural pest, weed, or diseases (i.e., harmful organisms) [claims 3-4]. Therefore, the product of Faers is adapted for the intended use of application of one or more agrochemical compounds for controlling harmful organisms. Regarding the limitation “is capable of being…applicators”, as discussed above, the reference teaches that the agrochemical formulation can be formulated as a liquid spray product, which can be applied by customary methods. Spraying by unmanned aerial vehicles is a customary application of spray liquids as evidenced by Applicant’s instant specification [pg. 33, lines 27-31]. Therefore, the product of Faers is capable of being applied as claimed.
Claims 1-3, 5-13, 15-21, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Faers et al. (US20200315165A1; published: 10/08/2020; IDS of 05/04/2023), as applied to claims 1-3, 5, 7-13, 15-21, and 23 above, and further in view of Baur et al. (US20140316157A1; published: 10/23/2014; PTO-892 of instant action) and as evidenced by Central Insecticides Board (Minutes of the 57th Meeting of the CIB, p. 1-39; published: 12/16/2019; PTO-892 of instant action).
Faers as evidenced by Central Insecticides Board teaches the invention(s) of claims 1-3, 5, 7-13, 15-21, and 23 as discussed in detail above and further incorporated herein.
Faers does not expressly teach that the formulation comprises Applicant’s elected species of component c) dioctylsulfosuccinate as recited in claim 6.
Baur, also drawn to crop protection compositions in forms customary for liquid preparations (i.e., emulsions, suspensions, solutions) which can be applied by customary methods (i.e., spraying), teaches that dioctyl sulfosuccinate is a useful retention promoter which reduces the dynamic surface tension of the formulation [0165; 0153].
Regarding claim 6: Because Faers explicitly teaches embodiments wherein its formulations include f) one or more penetration promoters, wetting agents, spreading agents, and/or retention agents and clearly names mono- and diesters of sulfosuccinate Na salts with branched or linear alcohols comprising 1-10 carbon atoms as suitable agents, it would have been obvious and one of ordinary skill in the art to modify the agrochemical formulation of Faers by further including the sodium salt form of the dioctyl sulfosuccinate of Baur as a retention agent. Since all of the claimed elements were known in the prior art, one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP 2134(I)(A).
Double Patenting
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, 5-13, 15-21, and 23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 and 14-15 of copending Application No. 18/863,767 (reference application) in view of Faers et al. (US20200315165A1; published: 10/08/2020; IDS of 05/04/2023).
Although the claims at issue are not identical, they are not patentably distinct from each other because reference claims 1-11 and 14-15 recite a tank mix additive for an agrochemical formulation comprising all features of the instantly claimed formulation in overlapping amounts. In regards to the amounts of the components, in the case where the claimed ranges “overlap or lie inside ranges disclosed” a prima facie case of obviousness exists. See MPEP 2144.05 A.
The copending claims differ from the instant claims in that they do not expressly recite that the tank mix additive is included in an agrochemical formulation comprising Applicant’s elected species of active ingredient fluoxapiprolin, Applicant’s elected species of drift reducing agent sunflower oil, Applicant’s elected species of rain-fast additive a copolymer of acrylate and styrene, Applicant’s elected species of rheological modifier polysaccharides, Applicant’s elected species of antifreeze glycerine, or that the formulation is an in-can formulation.
The teachings of Faers are as set forth above and further incorporated herein.
It would have been obvious to one of ordinary skill in the art to modify the additive recited in the reference claims by further including fluoxapiprolin (2-{3-[2-(1-{[3,5-bis(difluoromethyl)-1H-pyrazol-1-yl]acetyl}-piperidin-4-yl)-1,3-thiazol-4-yl]-4,5-dihydro-1,2-oxazol-5-yl}-3-chlorophenyl methanesulfonate) as an active ingredient, sunflower oil as a penetration promoter, a polymer of styrene and 2-ethylhexyl acrylate (2-EHA) having a Tg in the range from -100°C to 10°C as an emulsifier, polysaccharides as a rheological modifier, and glycerine as an antifreeze agent, as taught by Faers, to produce an in-can agrochemical formulation with no need for additional solvents or adjuvants. It would have been obvious to make the combination since all of the claimed elements and concentrations were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP 2134(I)(A).
Because it would have been obvious to one of ordinary skill to dilute the formulation taught by the combination of the reference claims and Faers to a desired concentration to produce an effective fungicidal spray liquid, which is capable of being applied at the doses and/or spray volume as claimed (Note: MPEP 2111.02), then claims 13, 16-17, and 19-21 are also rendered obvious.
This is a provisional nonstatutory double patenting rejection.
Claims 1-3, 5-13, 15-21, and 23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 and 16-17 of copending Application No. 18/863,772 (reference application) in view of Faers et al. (US20200315165A1; published: 10/08/2020; IDS of 05/04/2023).
Although the claims at issue are not identical, they are not patentably distinct from each other because reference claims 1-13 and 16-17 recite an agrochemical formulation comprising all features of the instantly claimed formulation in overlapping amounts. In regards to the amounts of the components, in the case where the claimed ranges “overlap or lie inside ranges disclosed” a prima facie case of obviousness exists. See MPEP 2144.05 A.
The copending claims differ from the instant claims in that they do not expressly recite Applicant’s elected species of drift reducing agent sunflower oil, Applicant’s elected species of rain-fast additive a copolymer of acrylate and styrene, Applicant’s elected species of rheological modifier polysaccharides, Applicant’s elected species of antifreeze glycerine, or that the formulation is an in-can formulation.
The teachings of Faers are as set forth above and further incorporated herein.
It would have been obvious to one of ordinary skill in the art to modify the formulation recited in the reference claims by further including sunflower oil as a penetration promoter, a polymer of styrene and 2-ethylhexyl acrylate (2-EHA) having a Tg in the range from -100°C to 10°C as an emulsifier, polysaccharides as a rheological modifier, and glycerine as an antifreeze agent, as taught by Faers, to produce an in-can agrochemical formulation with no need for additional solvents or adjuvants. It would have been obvious to make the combination since all of the claimed elements and concentrations were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP 2134(I)(A).
Because it would have been obvious to one of ordinary skill to dilute the formulation taught by the combination of the reference claims and Faers to a desired concentration to produce an effective fungicidal spray liquid, which is capable of being applied at the doses and/or spray volume as claimed (Note: MPEP 2111.02), then claims 13, 16-17, and 19-21 are also rendered obvious.
This is a provisional nonstatutory double patenting rejection.
Claims 1-3, 5-13, 15-21, and 23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6, 8-10, 13-15, 17-18, 20, and 22-24 of copending Application No. 18/251,816 (reference application) in view of Faers et al. (US20200315165A1; published: 10/08/2020; IDS of 05/04/2023).
Although the claims at issue are not identical, they are not patentably distinct from each other because reference claims 1-6, 8-10, 13-15, 17-18, 20, and 22-24 recite an agrochemical formulation comprising all features of the instantly claimed formulation in overlapping amounts. In regards to the amounts of the components, in the case where the claimed ranges “overlap or lie inside ranges disclosed” a prima facie case of obviousness exists. See MPEP 2144.05 A. Applicant’s elected species of drift reducing agent sunflower oil, Applicant’s elected species of rheological modifier polysaccharides, and Applicant’s elected species of antifreeze glycerine are rendered obvious by reference claim 23.
The copending claims differ from the instant claims in that they do not expressly recite Applicant’s elected species of rain-fast additive a copolymer of acrylate and styrene.
The teachings of Faers are as set forth above and further incorporated herein.
It would have been obvious to one of ordinary skill in the art to modify the formulation recited in the reference claims by further including a polymer of styrene and 2-ethylhexyl acrylate (2-EHA) having a Tg in the range from -100°C to 10°C as an emulsifier, as taught by Faers. It would have been obvious to make the combination since all of the claimed elements and concentrations were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP 2134(I)(A).
Because it would have been obvious to one of ordinary skill to dilute the formulation taught by the combination of the reference claims and Faers to a desired concentration to produce an effective fungicidal spray liquid, which is capable of being applied at the doses and/or spray volume as claimed (Note: MPEP 2111.02), then claims 13, 16-17, and 19-21 are also rendered obvious.
This is a provisional nonstatutory double patenting rejection.
Claims 1-3, 5-13, 15-21, and 23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 and 22-23 of copending Application No. 18/251,409 (reference application) in view of Faers et al. (US20200315165A1; published: 10/08/2020; IDS of 05/04/2023).
Although the claims at issue are not identical, they are not patentably distinct from each other because reference claims 1-17 and 22-23 recite an agricultural adjuvant composition comprising all features of the instantly claimed formulation in amounts recited as overlapping percentages rather than in g/l. In regards to the amounts of the components, in the case where the claimed ranges “overlap or lie inside ranges disclosed” a prima facie case of obviousness exists. See MPEP 2144.05 A.
The copending claims differ from the instant claims in that they do not expressly recite Applicant’s elected species of drift reducing agent sunflower oil, Applicant’s elected species of rain-fast additive a copolymer of acrylate and styrene, Applicant’s elected species of rheological modifier polysaccharides, or that the formulation is an in-can formulation.
The teachings of Faers are as set forth above and further incorporated herein.
It would have been obvious to one of ordinary skill in the art to modify the formulation recited in the reference claims by further including sunflower oil as a penetration promoter, a polymer of styrene and 2-ethylhexyl acrylate (2-EHA) having a Tg in the range from -100°C to 10°C as an emulsifier, and polysaccharides as a rheological modifier, as taught by Faers, to produce an in-can agrochemical formulation with no need for additional solvents or adjuvants. It would have been obvious to make the combination since all of the claimed elements and concentrations were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP 2134(I)(A).
Because it would have been obvious to one of ordinary skill to dilute the formulation taught by the combination of the reference claims and Faers to a desired concentration to produce an effective fungicidal spray liquid, which is capable of being applied at the doses and/or spray volume as claimed (Note: MPEP 2111.02), then claims 13, 16-17, and 19-21 are also rendered obvious.
This is a provisional nonstatutory double patenting rejection.
Claims 1-3, 5-13, 15-21, and 23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4-6, 8-10, 13-15, 17-18, 20, and 22-25 of copending Application No. 18/251,509 (reference application) in view of Faers et al. (US20200315165A1; published: 10/08/2020; IDS of 05/04/2023).
Although the claims at issue are not identical, they are not patentably distinct from each other because reference claims 1-2, 4-6, 8-10, 13-15, 17-18, 20, and 22-25 recite an agrochemical formulation comprising all features of the instantly claimed formulation in overlapping amounts. In regards to the amounts of the components, in the case where the claimed ranges “overlap or lie inside ranges disclosed” a prima facie case of obviousness exists. See MPEP 2144.05 A.
The copending claims differ from the instant claims in that they do not expressly recite Applicant’s elected species of drift reducing agent sunflower oil, Applicant’s elected species of rain-fast additive a copolymer of acrylate and styrene, Applicant’s elected species of rheological modifier polysaccharides, or Applicant’s elected species of antifreeze glycerine.
The teachings of Faers are as set forth above and further incorporated herein.
It would have been obvious to one of ordinary skill in the art to modify the formulation recited in the reference claims by further including sunflower oil as a penetration promoter, a polymer of styrene and 2-ethylhexyl acrylate (2-EHA) having a Tg in the range from -100°C to 10°C as an emulsifier, polysaccharides as a rheological modifier, and glycerine as an antifreeze agent, as taught by Faers. It would have been obvious to make the combination since all of the claimed elements and concentrations were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP 2134(I)(A).
Because it would have been obvious to one of ordinary skill to dilute the formulation taught by the combination of the reference claims and Faers to a desired concentration to produce an effective fungicidal spray liquid, which is capable of being applied at the doses and/or spray volume as claimed (Note: MPEP 2111.02), then claims 13, 16-17, and 19-21 are also rendered obvious.
This is a provisional nonstatutory double patenting rejection.
Claims 1-3, 5-13, 15-21, and 23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 5-12, and 14-18 of copending Application No. 18/251,413 (reference application) in view of Faers et al. (US20200315165A1; published: 10/08/2020; IDS of 05/04/2023) and Baur et al. (US20140316157A1; published: 10/23/2014; PTO-892 of instant action).
Although the claims at issue are not identical, they are not patentably distinct from each other because reference claims 1-3, 5-12, and 14-18 recite an agricultural adjuvant composition comprising all features of the instantly claimed formulation in amounts recited as overlapping percentages rather than in g/l. In regards to the amounts of the components, in the case where the claimed ranges “overlap or lie inside ranges disclosed” a prima facie case of obviousness exists. See MPEP 2144.05 A.
The copending claims differ from the instant claims in that they do not expressly recite Applicant’s elected species of drift reducing agent sunflower oil, Applicant’s elected species of spreading agent sodium dioctylsulfosuccinate, Applicant’s elected species of rheological modifier polysaccharides, Applicant’s elected species of antifreeze glycerine, or that the formulation is an in-can formulation.
The teachings of Faers and Baur are as set forth above and further incorporated herein.
It would have been obvious to one of ordinary skill in the art to modify the formulation recited in the reference claims by further including sunflower oil as a penetration promoter, polysaccharides as a rheological modifier, and glycerine as an antifreeze agent, as taught by Faers, as well as sodium dioctylsulfosuccinate, as taught by Baur and Faers, to produce an in-can agrochemical formulation with no need for additional solvents or adjuvants. It would have been obvious to make the combination since all of the claimed elements and concentrations were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP 2134(I)(A).
Because it would have been obvious to one of ordinary skill to dilute the formulation taught by the combination of the reference claims, Faers, and Baur to a desired concentration to produce an effective fungicidal spray liquid, which is capable of being applied at the doses and/or spray volume as claimed (Note: MPEP 2111.02), then claims 13, 16-17, and 19-21 are also rendered obvious.
This is a provisional nonstatutory double patenting rejection.
Claims 1-3, 5-13, 15-21, and 23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4-5, 7-20, and 22 of copending Application No. 18/251,506 (reference application) in view of Faers et al. (US20200315165A1; published: 10/08/2020; IDS of 05/04/2023) and Baur et al. (US20140316157A1; published: 10/23/2014; PTO-892 of instant action).
Although the claims at issue are not identical, they are not patentably distinct from each other because reference claims 1-2, 4-5, 7-20, and 22 recite an agrochemical formulation comprising all features of the instantly claimed formulation in overlapping amounts. In regards to the amounts of the components, in the case where the claimed ranges “overlap or lie inside ranges disclosed” a prima facie case of obviousness exists. See MPEP 2144.05 A.
The copending claims differ from the instant claims in that they do not expressly recite Applicant’s elected species of drift reducing agent sunflower oil, Applicant’s elected species of spreading agent sodium dioctylsulfosuccinate, Applicant’s elected species of rheological modifier polysaccharides, or Applicant’s elected species of antifreeze glycerine.
The teachings of Faers and Baur are as set forth above and further incorporated herein.
It would have been obvious to one of ordinary skill in the art to modify the formulation recited in the reference claims by further including sunflower oil as a penetration promoter, a polymer of styrene and 2-ethylhexyl acrylate (2-EHA) having a Tg in the range from -100°C to 10°C as an emulsifier, polysaccharides as a rheological modifier, and glycerine as an antifreeze agent, as taught by Faers, as well as sodium dioctylsulfosuccinate, as taught by Baur and Faers. It would have been obvious to make the combination since all of the claimed elements and concentrations were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP 2134(I)(A).
Because it would have been obvious to one of ordinary skill to dilute the formulation taught by the combination of the reference claims, Faers, and Baur to a desired concentration to produce an effective fungicidal spray liquid, which is capable of being applied at the doses and/or spray volume as claimed (Note: MPEP 2111.02), then claims 13, 16-17, and 19-21 are also rendered obvious.
This is a provisional nonstatutory double patenting rejection.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARAH CLINKSCALES WISTNER whose telephone number is (571)270-7715. The examiner can normally be reached Monday - Thursday 8:00 AM - 5:00 PM ET.
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/SARAH C WISTNER/Examiner, Art Unit 1616
/Mina Haghighatian/Primary Examiner, Art Unit 1616
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