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 .
Applicant’s amendment filed January 20, 2026 is acknowledged. Claims 79-98 are pending in the application. Claims 79, 96, and 98 been amended.
Election/Restrictions
Applicant's election with traverse of Group 1, claims 79-93, in the reply filed on January 20, 2026 is acknowledged. The traversal is on the grounds that the groups I-V share a special technical feature of a composition comprising a macromolecular complex of a solid copper-based compound and a negatively charged polyelectrolyte, wherein the particles comprising the solid particulate macromolecular complex of copper are characterized by a particle size distribution such that the D90 value is less than or equal to 10 microns and wherein the weight ratio between the negatively charged polyelectrolyte and the metallic copper is between 1:1 and 1:10. Applicant argues that Marks did not disclose a macromolecular complex as claimed. Applicant further argues the claimed invention is directed towards a copper cation controlled release composition. This is not found persuasive because while Applicant has amended the claim set, as of January 20, 2026, to change the scope of the claims, the claims that were examined for the issued Restriction Requirement did not have the amended limitations of a solid particulate macromolecular copper-based fungicide form a solid particulate micromolecular complex by electrostatic interaction, to thus control the release rate of copper cations from the copper-based fungicide.
The examiner maintains that Marks (US 2,551,446), cited on the IDS filed June 1, 2023. Marks teaches copper is a well-known algaecide, germicide and fungicide (col. 1, lines 4-6). Marks teaches that the material known as lignin sulfonate is remarkably effective in preventing the precipitation of the copper, while permitting full realization of the antimicrobial activity of the latter in any of the wide variety of concentrations (col. 1, lines 41-46). Marks teaches methods of combining the lignin sulfonate with a soluble copper salt have been practicable. The soluble copper salt (copper) and the lignin sulfonates (negatively charged polyelectrolyte) may be compounded together into a solid preparation of a concentrated aqueous solution (col. 2, lines 16-23). Thus, a feature found in the prior art cannot be considered to be a special technical feature.
In addition, Applicant’s claim multiple methods of use of the composition (Group II and Group III), wherein Group III is directed to multiple methods of use, whereas Group II is directed to a method of treating a plant and promoting the growth of a plant. Applicant claims multiple methods of preparing the composition (Group IV and Group V). Based on these multiple methods of use and methods of preparing the composition that do not fit into the categories, as indicated in the Restriction Requirement, unity of invention is not present.
The requirement is still deemed proper and is therefore made FINAL.
Claims 94-98 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made with traverse in the reply filed on January 20, 2026.
Claims 79-98 are pending in the application. Claims 94-98 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Claims 79-93 will presently be examined to the extent they read on the elected subject matter of record.
Priority
This application is a National Stage Entry of PCT/IB2021/061258 filed December 2, 2021, which claims benefit to U.S. Provisional Application No. 63/120,575 filed December 2, 2020. Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 112 as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed applications, 1) PCT/IB2021/061258 and 2) U.S. Provisional Application No. 63/120,575 fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, fails to provide by first paragraph for one or more claims of this application. The claims are not entitled to priority of the parent applications because they do not have support for “the copper cations of the copper-based fungicide form a solid particulate macromolecular complex by electrostatic interaction”. The effective filing date of the claims of the instant application is June 1, 2023.
Information Disclosure Statement
Receipt of Information Statements filed June 1, 2023 is acknowledged.
Claim Objections
Claim 80 is objected to because of the following informalities: 1) There is an extra space in the term “poly-γ- glutamic acid” in line 9. The space should be removed to recite “poly-γ- glutamic acid” and 2) The conjunction “and” is used too many times in line 11. Line 11 recites “dextran sulphate, and hyaluronic acid, and synthetic origin”. One of the conjunction “and” should be canceled. Appropriate correction is required.
Claim 82 is objected to because of the following informalities: There is extra space in the term “epsilon- poly-L-lysine”. The space should be removed to recite “epsilon-poly-L-lysine”. There are also extra spaces between several of the polycation components claimed. The spaces should be removed.
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 the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 79 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The new matter introduced, “the copper cations of the copper-based fungicide form a solid particulate macromolecular complex by electrostatic interaction”. While the specification does provide on page 7, “macromolecular complex” refers to structure that is formed by non-covalent interaction of a copper-based fungicide with a polyelectrolyte…In such macromolecular complex, the non-covalent interactions are preferably electrostatic interaction”. See page 7, lines 1-5. The original claim also state “macromolecular complex of said copper-based fungicide in solid particulate form and said negatively charged polyelectrolyte, wherein the macromolecular complex is a non-covalent interaction”. However, there is no explicit or implied support for “the copper-based fungicide forming a solid particulate macromolecular complex by electrostatic interaction”, as currently claimed.
Claims 80-93 are dependent from claim 79. Therefore, claims 80-93 are also rejected.
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 79-93 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 79, line 9, the phrase "such that" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). It is unclear if “the copper cations of the copper-based fungicide from a solid particulate macromolecular complex by electrostatic interaction, to thus control the release rate of copper cations from the copper-based fungicide” is a part of the claim.
Claim 79, lines 12-13 recite “wherein particles comprising the solid particulate macromolecular complex of copper are characterized by a particle size”. There is lack of antecedent basis for this limitation because the macromolecular complex comprises the copper based fungicide in solid particulate form and the negatively charged polyelectrolyte, as cited in lines 3-6, not the copper alone, as claimed in this limitation. This makes the limitation indefinite and clarification is required.
Regarding claim 79, line 15 the phrase "such that" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). It is unclear if “the D90 value is less than or equal to 10 microns” is a part of the claim.
Claim 79 recites the limitation "the metallic copper" in lines 18 and 19. There is insufficient antecedent basis for this limitation in the claim. The use of the article “the” before “metallic copper” indicates that “a metallic copper” was claimed earlier in the claim. Claim 79 recites “a copper based fungicide”, “copper cations”. There is no reference to “a metallic copper” prior to lines 18 and 19. Therefore, there is lack of antecedent basis.
Claim 79 is confusing because of the newly added claim limitations, which appear to have redundancies of limitations already claimed. Claim 79 is being interpreted as “A copper cation controlled release composition comprising a negatively charged polyelectrolyte and a copper based fungicide as a source of copper cations, wherein the composition comprises a macromolecular complex that comprises the copper-based fungicide in solid particulate form and the negatively charged polyelectrolyte, wherein particles comprising the solid particulate macromolecular complex of copper are characterized by a particle size distribution, wherein the D90 value is less than or equal to 10 microns…the pH is between about 5 and 7.5 in water…weight ratio between negatively charged polyelectrolyte and the copper is between 1:1 and 1:10…if the composition further comprises a polycation, said polycation is part of a polyelectrolyte complex…and said polycation.
Claims 80-93 are dependent from claim 79 are therefore also rejected.
Regarding claim 80, line 11, the phrase "for example" renders 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). It is unclear is “poly(acrylic acid), polyphosphoric acid…and any combination thereof” is a part of the claim.
The term “substantially” in claim 82, is a relative term which renders the claim indefinite. The term “substantially” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The term “substantially free” in line 2 of claim 82 renders the polycation indefinite. One of ordinary skill in the art could not ascertain and interpret the metes and bounds of the patent protection desired as to what limits “substantially free” sets in determining the amount of polycation in the composition, for example, “substantially free” could be in range of 0 to .5%, in one case and 0 to 25, in another. Clarity is requested on the metes and bounds of “substantially free”.
Claim 85 recites “wherein the composition comprises a water-immiscible organic phase”. Claim 85 is dependent from claim 83. Claim 83 recites “the composition of claim 79 further comprise at least one agriculturally acceptable additive”. It is unclear if the “water-immiscible organic phase” of claim 85 is the “at least one agriculturally acceptable additive” or an additional ingredient. Clarification is required.
Claim 86 recites the composition further comprises: a., b., c., d., and e. However, without a conjunction the claim is indefinite because it cannot be determined if the composition further comprises all elements: a., b., c., d., and e. or the composition further comprises: a., b., c., d., or e. Clarification is required. For compact prosecution, claim 86 will be interpreted wherein the composition further comprise a., b., c., d., or e.
Claim 88 recites wherein the composition comprises components a. to j. Claim 88 is dependent from claim 79. This recitation is indefinite because it is unclear if these components are additional. Claim 88 should be clarified. The claim could recite “composition further comprises”.
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 89, lines 2-3 recites the broad recitation 40-80% by weight of water, and the claim also recites 50-55% by weight of water 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.
Claim 91 recites wherein the composition comprises a dispersant combination. Claim 91 is dependent from claim 79. This recitation is indefinite because it is unclear if these components are additional. Claim 91 should be clarified. The claim could recite “composition further comprises”.
Claim 92, lines 2-3 recites “1500-1800 cPs (measured with a Brookfield spindle 63 at 12 rpm)”. The use of parentheses renders the claims indefinite because it is unclear whether the limitations “measured with a Brookfield spindle 63 at 12 rpm” within the parentheses are part of the claimed invention. Correction is required.
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 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 79-90 and 92-93 are rejected under 35 U.S.C. 103 as being unpatentable over van der Krieken et al. (US 2010/013612) in view of Khaled et al. (US 2007/0243237) van der Krieken et al. cited by Applicant on the IDS dated 6/1/2023.
Applicant’s Invention
Applicant claims a copper cation controlled release composition comprising a negatively charged polyelectrolyte and a copper based fungicide as a source of copper cations, wherein the composition comprises a macromolecular complex of said copper-based fungicide in solid particulate form and said negatively charged polyelectrolyte, wherein the macromolecular complex is a non-covalent interaction of the copper cations of the copper-based compound and said negatively charged polyelectrolyte such that the copper cations of the copper-based fungicide form a solid particulate macromolecular complex by electrostatic interaction, to thus control the release rate of copper cations from the copper-based fungicide, wherein the particles comprising the solid particulate macromolecular complex of copper are characterized by a particle size distribution such that the D90 value is less than or equal to 10 microns, wherein said composition is characterized by a pH between about 5 and 7.5 in water, wherein the weight ratio between the negatively charged polyelectrolyte and the metallic copper is between is between 1:1 and 1:10, and wherein if the composition further comprises a polycation, said polycation is part of a polyelectrolyte complex comprising said negatively charged polyelectrolyte and said polycation.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Regarding claim 79, van der Krieken et al. teach a composition comprising a soluble combination comprising at least one lignosulfonate, at least one metal salt, and at least one phosphorous compound, wherein the composition excludes a solubilizing amount of a chelator. The pH of the composition about 5.0, about 5.1… about 5.2… about 7.0 (page 12, paragraph 153).
Regarding claims 79, 80, and 81, van der Krieken et al. teach in Table 2 percentage of copper ions complexed to lignosulfonate at different pH and at different amount of Cu per 100 gram of lignosulfonate (page 9, Table 2).
Regarding claim 79, van der Krieken et al. teach ions are mainly present as solid copper(II) phosphite particles. Thus, it will be highly desirable to prevent Cu(II) and other metal ions from precipitating with phosphite ions in aqueous fungicidal compositions comprising Cu(II) ions and/or other metal ions and phosphite ions (page 9, paragraph 132).
Regarding claims 79, 80 and 81, van der Krieken et al. teach the ratio of metal(s), as ion(s) of the metal salt(s) to lignosulfonate (in weight) in the composition is at least about 1:5 (w/w); about 1:10 (w/w) (page 10, paragraph 143).
Regarding claims 80 and 81, van der Krieken et al. teach metal salts may include, but not be limited to, copper hydroxide, copper oxychloride, copper sulfates (page 10, paragraph 141).
Regarding claim 81, van der Krieken et al. teach in example 4 solutions were prepared of: (a) 6 mM copper sulphate (CuSO45H2O), (b) 6 mM zinc sulphate (ZnSO4H2O), (c) 6 g/l sodium lignosulfonate. The pH is 5.5 (page 15, paragraph 197).
Regarding claim 82, van der Krieken et al. does not teach a polycation, which reads on section a., wherein the composition is substantially free or free of a polycation.
Regarding claims 83, 87 and 88, section a., van der Krieken et al. teach the composition is a solution. An example of a solution useful in preparing the compositions of the instant invention is one in which the solvent is water (page 12, paragraph 156).
Regarding claim 84, section a., van der Krieken et al. teach the concentration metal(s), as ion(s) of the metal salt(s) in the present invention typically range from 0.25% to 5%, by weight. In some particular instances, the concentration of metal(s), as ion(s) of the metal salt(s) in the present invention may be greater than 5%, (page 10, paragraph 141).
Regarding claim 84, section b, van der Krieken et al. teach the concentration of lignosulfonate is at least about 15% (page 10, paragraph 143).
Regarding claim 85, van der Krieken et al. teach in Table 6 preparation of spray mixtures. Composition 1 comprises oil, which is a water immiscible organic phase (page 15, Table 6).
Regarding claim 87, van der Krieken et al. teach the composition may optionally comprise additional components. In particular said composition may comprise one or more ionic or non-ionic surfactants, for instance as spreader, wetting agent, dispersant, or emulsifier (page 12, paragraph 157).
Regarding claim 89, van der Krieken et al. teach in Example 2 the components of the composition were put together and subsequently mixed with demineralized water to a total volume of 1 liter immediately resulting in a clear solution of pH 5.5 (page 14, paragraph 194).
Regarding claim 90, van der Krieken et al. teach the pesticidal compounds are used as a combination of at least one carvacrol pesticidal compound and at least one thymol pesticidal compound (page 13, paragraph 179).
Regarding claim 92, van der Krieken et al. teach spray formulations include water-soluble powders…water-dispersible powders, and oil solutions (page 13, paragraph 183) and granular formulations (page 14, paragraph 188).
Regarding claim 93, van der Krieken et al. teach sprays were prepared by mixing the products in banana spray oil (Banole) and emulsifier (Triton X100) for Composition 1. Each product was applied in dosage of 201/spray/hectare, using a knapsack manual sprayer and a knapsack engine mist blower (page 15, paragraph 199).
van der Krieken et al. teach in an ideal situation the active ingredients before and during application are at least present as dissolved molecules or as part of dissolved molecular complexes, whereas after application the active ingredients remain relatively immobile over the long term (page 7, paragraph 119).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
van der Krieken et al. do not specifically disclose a controlled release composition, the composition comprises a macromolecular complex of the copper-based fungicide in solid particulate form and negatively charged polyelectrolyte, the complex of copper has a particle size distribution such that the D90 value is less than or equal to 10 microns, as claimed in claim 79, the composition further comprises any of the formulations claimed in claim 86 or the percentage of water, as claimed in claim 89. It is for this reason Khaled et al. is added as a secondary reference.
Khaled et al. teach the antimicrobial thin film coating is a polyelectrolyte complex film applied to a substrate, with the polyelectrolyte complex material having biocidal properties (page 1, paragraph 11).
Khaled et al. teach the positively charged polyelectrolytes and the negatively charged polyelectrolytes arrange themselves into a polyelectrolyte complex due to the electrostatic attraction between particles, allowing for the formation of a thin film with optimal coverage of the substrate (page 1, paragraph 13).
Khaled et al. teach the polyelectrolytes may be synthetically modified naturally occurring macromolecules, such as modified celluloses and lignins (page 2, paragraph 32).
Regarding claim 79, Khaled et al. teach the molecular weight of a synthetic polyelectrolyte molecule is typically on the order of between 100 and 10,000,000 grams/mole and, in the preferred embodiment, is approximately between 10,000 and 1,000,000 grams/mole (page 3, paragraph 33).
Regarding claim 79, Khaled et al. teach Examples of negatively charged polyelectrolytes include sulfonated lignin (page 3, paragraph 35).
Finding a prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of van der Krieken et al. and Khaled et al. and compose a composition that comprises a macromolecular complex of copper-based fungicide and a negatively charged polyelectrolyte. van der Krieken et al. teach a composition comprising a soluble combination comprising at least one lignosulfonate, at least one metal salt, and at least one phosphorous compound, wherein the composition excludes a solubilizing amount of a chelator. The pH of the composition about 5.0, about 5.1… about 5.2… about 7.0. van der Krieken et al. teach in Table 2 percentage of copper ions complexed to lignosulfonate at different pH and at different amount of Cu per 100 gram of lignosulfonate. Khaled et al. teach that sulfonated lignin are negatively charged polyelectrolytes. Khaled et al. teach the positively charged polyelectrolytes and the negatively charged polyelectrolytes arrange themselves into a polyelectrolyte complex due to the electrostatic attraction between particles. It would have been obvious to one of ordinary skill in the art that components of compositions are inseparable from their properties. Therefore, the lignosulfonate taught by van der Krieken et al. is a negatively charged polyelectrolyte, as taught by Khaled. This is further evidenced by Applicant’s admission in claim 81. As such, following the prior art teaching that if the same composition, lignosulfonate and copper sulfate is taught in the prior art, one that is complexed and has the claimed pH and weight ratios, the skilled artisan would expect to obtain a result that necessarily flows with the intended purpose and properties, i.e., a macromolecular complex with electrostatic interaction, without evidence to the contrary.
Regarding the limitation of controlled release of the copper-based fungicide, van der Krieken et al. teach in an ideal situation the active ingredients before and during application are at least present as dissolved molecules or as part of dissolved molecular complexes, whereas after application the active ingredients remain relatively immobile over the long term. Based on this teaching it would have been obvious to the skilled artisan that the complex of copper sulfate and lignosulfonate would provide the controlled release by remainng immoble over the long term, without evidence to the contrary.
Regarding the limitation of the complex of copper having a particle size distribution such that the D90 value is less than or equal to 10 microns, as claimed in claim 79, one of ordinary skill in the art would have used experimentation to determine the optimal particle size of the copper component. van der Krieken et al. teach ions are mainly present as solid copper(II) phosphite particles and it will be highly desirable to prevent Cu(II) and other metal ions from precipitating with phosphite ions in aqueous fungicidal compositions comprising Cu(II) ions and/or other metal ions and phosphite ions. The adjustment of particular conventional working conditions (e.g., determining result effective particle sizes beneficially taught by the cited references, especially within the broad ranges instantly claimed) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Regarding the limitation of the composition further comprises any of the formulations claimed in claim 86, van der Krieken et al. teach the pesticidal compounds of the present invention are used as a combination of at least one carvacrol pesticidal compound and at least one thymol pesticidal compound. van der Krieken et al. teach various agriculturally acceptable carriers, including water. Since van der Krieken et al. teach many formulation techniques, one of ordinary skill in the art would have been motivated to formulate at least one additional pesticidal compound, such a thymol, with water as a carrier, with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
Regarding the percentage of water, as claimed in claim 89, van der Krieken et al. teach the composition is a solution. An example of a solution useful in preparing the compositions of the instant invention is one in which the solvent is water. van der Krieken et al. teach in Example 2 the components of the composition were put together and subsequently mixed with demineralized water to a total volume of 1 liter immediately resulting in a clear solution of pH 5.5. It would have been obvious to one of ordinary skill in the art to experiment with the amount of water to use in the composition, including 40-80% to formulate the optimal composition to control fungi. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references, especially within the broad ranges instantly claimed) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Claim 91 is rejected under 35 U.S.C. 103 as being unpatentable over van der Krieken et al. (US 2010/013612) in view of Khaled et al. (US 2007/0243237) as applied to claims 79-90 and 92-93 above, and further in view of Stark et al. (WO 2015/034359). van der Krieken et al. and Stark et al. cited by Applicant on the IDS dated 6/1/2023.
Applicant’s Invention
Applicant claims a copper cation controlled release composition comprising a negatively charged polyelectrolyte and a copper based fungicide as a source of copper cations, wherein the composition comprises a macromolecular complex of said copper-based fungicide in solid particulate form and said negatively charged polyelectrolyte, wherein the macromolecular complex is a non-covalent interaction of the copper cations of the copper-based compound and said negatively charged polyelectrolyte such that the copper cations of the copper-based fungicide form a solid particulate macromolecular complex by electrostatic interaction, to thus control the release rate of copper cations from the copper-based fungicide, wherein the particles comprising the solid particulate macromolecular complex of copper are characterized by a particle size distribution such that the D90 value is less than or equal to 10 microns, wherein said composition is characterized by a pH between about 5 and 7.5 in water, wherein the weight ratio between the negatively charged polyelectrolyte and the metallic copper is between is between 1:1 and 1:10, and wherein if the composition further comprises a polycation, said polycation is part of a polyelectrolyte complex comprising said negatively charged polyelectrolyte and said polycation.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
The teachings of van der Krieken et al. and Khaled et al. with respect to the 35 U.S.C. 103 rejection are hereby incorporated and are therefore applied in the instant rejection as discussed above.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
van der Krieken et al. and Khaled et al. do not specifically disclose the composition comprises a dispersant combination. It is for this reason Stark et al. is added as a secondary reference.
Stark et al. teach a complex of at least one antimicrobial compound and a polyelectrolyte complex of a polyanion and a polycation (Abstract).
Regarding claim 91, Stark et al. teach a dispersing or wetting agent known to a skilled person such as, for example, ethoxylated tristyrenephenol phosphate, for example polyethoxylated fosforic acid , and/or a wetting agent such as di-octylsuccinate, polyoxyethylene/polypropylene and tri-stearyl sulphonate/phosphate, is preferably present (page 35, lines 1-6).
Finding a prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of van der Krieken et al., Khaled et al., and Stark et al. and add a dispersant combination to the formulations. van der Krieken et al. teach a composition comprising a soluble combination comprising at least one lignosulfonate, at least one metal salt, and at least one phosphorous compound, wherein the composition excludes a solubilizing amount of a chelator. van der Krieken et al. teach the compositions comprise lignosulfonate and copper salts. van der Krieken et al. teach the composition may optionally comprise additional components, including wetting agent, dispersant, or emulsifier. One of ordinary skill in the art would have been motivated to add known dispersant combinations to the complexes taught by van der Krieken, as modified by Khaled et al., based on the teachings of Stark et al. Stark et al. teach a complex of at least one antimicrobial compound and a polyelectrolyte complex of a polyanion and a polycation. Stark et al. teach a dispersing or wetting agent known to a skilled person such as, for example, ethoxylated tristyrenephenol phosphate, for example polyethoxylated fosforic acid , and/or a wetting agent such as di-octylsuccinate, polyoxyethylene/polypropylene and tri-stearyl sulphonate/phosphate, is preferably present. As such, the skilled artisan would have been motivated to use the dispersants used in similar compositions in the compositions taught by van der Krieken, as modifiec by Khaled et al., with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Andriae M Holt whose telephone number is (571)272-9328. The examiner can normally be reached Monday-Friday, 8:00 am-4:30 pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush can be reached at 571-272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ANDRIAE M HOLT/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614