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 .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 10, 14 and 15 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 10 is directed to: “The aqueous composition according to claim 9, wherein the adjuvant is selected from a mineral oil, a vegetable oil, an esterified vegetable oil, a methylated vegetable oil or an alkyl ester phosphate-based adjuvant, and preferably, an alkyl ester phosphate-based adjuvant.”
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, claim 10 recites the broad recitation “wherein the adjuvant is selected from a mineral oil, a vegetable oil, an esterified vegetable oil, a methylated vegetable oil or an alkyl ester phosphate-based adjuvant”, and the claim also recites “, and preferably, an alkyl ester phosphate-based adjuvant.” which is the narrower statement of the range/limitation. 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 14 and 15 recite the limitation "The method according to claim 10" in line 10. There is insufficient antecedent basis for this limitation in the claims, as claim 10 is a composition, not a method claim. Claim 10 further does not recite any plant, whereas claims 14 and 15 further lack antecedent basis for the recited “the plant”.
Allowable Subject Matter
Claims 1-9 and 11-13 are allowable. The following is an Examiner’s statement pertaining to the indication of allowable subject matter.
Applicant performed studies, and was able to demonstrate considerably better chemical stability in a Composition B according to Applicant’s claims with active ingredients spiropidion and acetamiprid and with the further presence of the organic acid citric acid, as compared to a Composition A lacking citric acid. See Tables 1 and 2.
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388
744
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384
757
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The closest prior art are the following references:
-WO 2013/107793 A2 to Buchholz et al. (“Buchholz”)
Buchholz relates to mixtures of pesticidally active ingredients and to methods of using the mixtures to control insects, acarines, nematodes or molluscs. The mixtures comprise component A, selected from a compound of formula (I)
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505
709
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,
and component B, which is selected from acetamiprid.
Unlike Applicant’s claims, the mixtures do not comprise organic acids.
- WO 2023017120 A1 to Gortz et al. (“Gortz”)
Gortz relates to active compound combinations comprising as compound (A) methyl 2-[2- chloro-4-(4-chlorophenoxy)phenyl]-2-hydroxy-3-(l,2,4-triazol-l-yl)propanoate, 2-[2-chloro-4-(4-chloro- phenoxy)phenyl]-2-hydroxy-3-(l,2,4-triazol-l-yl)propanoic acid or a mixture thereof, as compound (B) a further specified fungicide and optionally as compound(s) (C) one or more further fimgicide(s). Moreover, the invention relates to fungicide compositions comprising such compound combination and to the use of the compound combinations and the fungicide compositions as biologically active agent, especially for control of phytopathogenic fungi in crop protection and in the protection of industrial materials and as plant growth regulators.
The structures of the claimed compounds further show that they are not spiro heterocyclic compounds according to Applicant’s claims.
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503
517
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Gortz does disclose the addition of organic acids. However, as can be seen from the this disclosure, it pertains to a laundry list of possible ingredients, for which there is no motivation to specifically select organic acid in order to achieve improved stability with a reasonable expectation of success.
“The compound combination and the composition of the invention may be combined with one or more suitable nutrient(s) and/or fertilizer(s), such as organic acids (e.g., acetic acid, citric acid, lactic acid, malic acid, taurine, etc.), macrominerals (e.g., phosphorous, calcium, magnesium, potassium, sodium, iron, etc.), trace minerals (e.g., boron, cobalt, chloride, chromium, copper, fluoride, iodine, iron, manganese, molybdenum, selenium, zinc, etc.), vitamins, (e.g., vitamin A, vitamin B complex (i.e., vitamin Bi, vitamin B2 , vitamin B3 , vitamin B5 , vitamin B6 , vitamin B7 , vitamin B8 , vitamin B9 , vitamin BI2 , choline) vitamin C, vitamin D, vitamin E, vitamin K.), and/or carotenoids (a-carotene, P-carotene, cryptoxanthin, lutein, lycopene, zeaxanthin, etc.), and combinations thereof. In an aspect, the compound combination and the composition according to the invention may be combined with macro- and micronutrients of plants or microbes, including phosphorous, boron, chlorine, copper, iron, manganese, molybdenum and/or zinc. According to some embodiments, the compound combination and the composition according to the invention may be combined with one or more beneficial micronutrients. Non-limiting examples of micronutrients for use in compositions described herein may include vitamins, (e.g., vitamin A, vitamin B complex (i.e., vitamin Bl, vitamin B2, vitamin B3, vitamin B5, vitamin B6, vitamin B7, vitamin B8, vitamin B9, vitamin Bl 2, choline) vitamin C, vitamin D, vitamin E, vitamin K, carotenoids (a-carotene, -carotene, cryptoxanthin, lutein, lycopene, zeaxanthin, etc.), macrominerals (e.g., phosphorous, calcium, magnesium, potassium, sodium, iron, etc.), trace minerals (e.g., boron, cobalt, chloride, chromium, copper, fluoride, iodine, iron, manganese, molybdenum, selenium, zinc, etc.), organic acids (e.g., acetic acid, citric acid, lactic acid, malic acid, taurine, etc.), and combinations thereof (BAYFOLAN secure, BAYFOLAN complete, BAYFOLAN energy, BAYFOLAN power, Aglukon GmbH, Germany). In a particular aspect, compositions may comprise phosphorous, boron, chlorine, copper, iron, manganese, molybdenum, and/or zinc, and combinations thereof. For compositions comprising phosphorous, it is envisioned that any suitable source of phosphorous may be used. For example, phosphorus may be derived from a rock phosphate source, such as monoammonium phosphate, diammonium phosphate, monocalcium phosphate, super phosphate, triple super phosphate, and/or ammonium polyphosphate, an organic phosphorous source, or a phosphorous source capable of solubilization by one or more microorganisms (e.g., Penicillium bilaiae).” (p. 64, l.20 -p. 65, l. 10).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SVETLANA M IVANOVA whose telephone number is (571)270-3277. The examiner can normally be reached 8:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kortney L. Klinkel can be reached at (571) 270-5239. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SVETLANA M IVANOVA/ Primary Examiner, Art Unit 1627