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 .
Acknowledgement of Receipt
Applicant’s Response, filed 6/4/2026, in reply to the Office Action mailed 3/4/2026, is acknowledged and has been entered. Claims 1-10 and 12-14, have been amended. Claims 16-21 are newly added. Claims 1-10 and 12-21 are pending and are examined herein on the merits for patentability.
Response to Arguments
Applicant’s arguments have been fully considered. Any rejection not reiterated herein has been withdrawn as being overcome by amendment. The previous rejection has been modified in view of claim amendment. The Examiner’s response to Applicant’s arguments is incorporated below.
Claim Objections
Applicant is advised that should claim 15 be found allowable, claim 20 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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.
Claim(s) 1-10 and 12-21 are rejected under 35 U.S.C. 103 as being unpatentable over Aulisa (WO 13/184516) in view of Jeschke (Pest Manag Sci, 2021, 77(1), p. 64-76, Epub 2020 Sept 28), as further evidenced by Xia (US 2007/0196329).
Aulisa teaches a novel pesticide compositions having a high concentration of a water-soluble herbicide, and a solid water-insoluble pesticide, for example the herbicide penoxsulam, are provided herein. Compositions of the invention are, among other things, stable upon storage in various thermal environments and exhibit enhanced resistance to settling of the solid particles and/or enhanced resistance to chemical degradation of the water-insoluble pesticide (abstract).
Suspended or dispersed in the aqueous phase of the compositions described herein are water-insoluble solid pesticides. In certain embodiments, "water insoluble" refers to pesticides having solubility in deionized water at 20 °C of not greater than about 100 milligrams per liter (mg/L). In some embodiments the pesticides have solubility in deionized water at 20 °C of not greater than about 75 mg/L. In some embodiments the pesticides have solubility in deionized water at 20 °C of not greater than about 50 mg/L. In some embodiments the pesticides have solubility in deionized water at 20 °C of not greater than about 25 mg/L. In certain embodiments, "solid" refers to pesticides having a melting point not less than about 75 °C. In some embodiments, the water insoluble pesticide has a melting point not less than about 100 °C, and in other embodiments, not less than about 150 °C.
The water insoluble pesticide contained in the dispersed phase of the described compositions may, e.g., be a herbicide, a plant growth regulator, an algicide, a fungicide, a bactericide, a viricide, an insecticide, a acaricide, a nematicide or a molluscicide. In some embodiments, the pesticide is a herbicide.
Exemplary herbicides useful as water insoluble pesticide active ingredients in the dispersed phase of the described compositions include, but are not limited to, one or more of aclonifen, amidosulfuron, atrazine, etc. (page 4+).
The compositions described herein comprise from about 1 g/L to about 100 g/L of at least one wetting-dispersing agent. Wetting-dispersing agents facilitate the dispersion of the water-insoluble solid pesticide particles in the aqueous medium and prevent aggregation of the particles themselves. The wetting-dispersing agent may include dialkyl esters of sulfosuccinate salts, etc.
In some embodiments, a wetting-dispersing agent is a combination of Morwet® D- 425 (sodium salt of an alkylnaphthalene-sulfonate condensate) and Pluronic® P-105 (block copolymer of ethylene oxide and propylene oxide). In certain embodiments, the wetting- dispersing agent is Atlox® 4913 (comb-type polymeric surfactant; acrylic-methacrylic copolymer grafted with polyethylene oxide side chains) or Atlox® 4915 (an amphoteric polymeric surfactant) (page 13).
Example 1 teaches a preparation of a stable aqueous suspension concentrate containing 32 wt Sodium Bentazon and 0.89 wt Penoxsulam (Sample 1).
The composition contained the following: bentazon sodium active ingredient (361.12 g/L, 31.99 wt ), penoxsulam active ingredient (10.044 g/L, 0.89 wt ), Antifoam B (1.146 g/L, 0.10 wt ), propylene glycol antifreeze (41.835 g/L, 3.71 wt ), Proxel™ GXL biocide, (0.047 g/L, 0.004 wt ), available from Arch Chemicals, Inc. (Smyrna, GA), Pluronic® P-105 dispersant, available from BASF Corporation (Florham Park, NJ), (1.408 g/L, 0.12 wt ), citric acid pH buffer (0.047 g/L, 0.004 wt ), Atlox® 4913 dispersing agent, available from Croda (Edison, NJ), (10.044 g/L, 0.89 wt ), Morwet® D-425 dispersing agent, available from Akzo Nobel (Chicago, IL), (1.408 g/L, 0.12 wt ), Veegum® HS rheology agent, available from RT Vanderbilt (Norwalk, CT), (2.257 g/L, 0.20 wt ), Kelzan® AP rheology agent, available from CP Kelco (Atlanta, GA) (2.257 g/L, 0.20 wt ), water (balance). Samples 2-5 were prepared in a similar manner to Sample 1, except using the rheology agent or rheology agents and the amounts shown in Table 1.
The aqueous herbicidal compositions described herein may optionally be diluted in an aqueous spray mixture for agricultural application such as for weed control in crop fields. Such compositions are typically diluted with an inert carrier, such as water, before application. The diluted compositions, which are usually applied, for example, to weeds, the locus of weeds or the locus of where weeds may eventually emerge, in some embodiments contain about 0.0001 to about 1 weight percent active ingredient or from 0.001 to about 0.05 weight percent active ingredient. The present compositions can be applied, for example, to weeds or their locus by the use of conventional ground or aerial sprayers, by addition to irrigation water and by other conventional means known to those skilled in the art (page 15).
Aulisa does not specifically recite isocycloseram as the pesticide.
Jeschke teaches that effective control of insect pest populations by modern products in agriculture and horticulture must currently correlate with the many features required for optimal efficacy, low application rate in the field, improved selectivity, enhanced user friendliness, favorable toxicological and environmental safety, and protect non-target organisms. Obtaining products that meet most of these requirements has become the focus of attention for agro- chemical and food companies, regulatory authorities, farmers, and the general public. The use of beneficial insects, combined with acaricides and insecticides, new formulation concepts, and versatile application methods (e.g. drone technology or soil and seed treatments used against insect vectors for plant virus dis- eases) has intensified. The development of effective active ingre- dients (a.i.) with novel mode of actions (MoAs) and narrower insecticidal spectra (e.g. active only against sucking pest-targeted or certain chewing pest-targeted insects) has become a new focus (page 64).
Isocycloseram [containing 80-100% of the (5S,4R)-isomer); common name ISO-provisionally approved; is a broad-spectrum arylisoxazoline insecticide and acaricide that is active against lepidopteran, hemipteran, coleopteran, thysanopteran and dipteran pest species. A cost-efficient asymmetric technology has been developed to produce the active isocycloseram (5S,4R)-diastereomere with an enantiomeric excess. Similar to fluxametamid, isocycloseram is a GABA-gated chloride channel allosteric modulator and acts as a non-competitive GABA-gated chloride channel antagonist at a site different from known antagonists such as fiproles and cyclodienes, and thus can be used to control resistant insects (page 67).
PNG
media_image1.png
176
404
media_image1.png
Greyscale
It would have been obvious to one of ordinary skill in the art at the time of the invention to substitute isocycloseram as a functionally equivalent pesticide as a pesticide in the formulations taught by Aulisa comprising Pluronic P-105 dispersant (block copolymer of ethylene oxide and propylene oxide), Atlox 4913 dispersing agent (acrylic-methacrylic copolymer grafted with polyethylene oxide side chains), and propylene glycol, when the teaching of Aulisa is taken in view of Jeschke. The Supreme Court in KSR International Co. v. Teleflex Inc., 550 U.S. ___, 82 USPQ2d 1385, 1395-97 (2007) identified a number of rationales to support a conclusion of obviousness which are consistent with the proper “functional approach” to the determination of obviousness as laid down in Graham. One such rationale includes the simple substitution of one known element for another to obtain predictable results. The key to supporting any rejection under 35 U.S.C. 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. See MPEP 2143.
In the instant case, the substituted components and their functions were known in the art at the time of the instant invention. For example, Aulisa teaches that a variety of pesticides are suitable for use in the formulation. Jeschke teaches that isocycloseram is a broad-spectrum arylisoxazoline insecticide and acaricide that is active against lepidopteran, hemipteran, coleopteran, thysanopteran and dipteran pest species, and can be used to control resistant insects. One of ordinary skill in the art could have substituted one known pesticide for another, and the results of the substitution would have been predictable, that is provision of a formulation that is stable upon storage, displays enhanced resistance to settling of solid particles and/or enhanced resistance to chemical degradation of a water-insoluble pesticide.
Regarding claim 8, Xia is included to show that Pluronic® P-105 has a molecular weight of 6,500 (paragraph 0040).
Regarding the amended and newly added claims, Aulisa teaches that the compositions described herein comprise from about 1 g/L to about 100 g/L of at least one wetting-dispersing agent, which may include dialkyl esters of sulfosuccinate salts which corresponds to an oxygenated alkyl as claimed.
Regarding the concentration of wetting-dispering agent, the range of wetting/dispersing agent corresponds to about 0.1 to 10 percent by weight. Furthermore, differences in concentration or temperature will generally not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[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.” See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955); In re Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; or In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
Regarding newly added claim 16, exemplary insecticides useful as pesticides in the dispersed phase of the described compositions in Aulisa include, but are not limited to, one or more of abamectin, etc. Accordingly, Aulisa teaches combinations of insecticides/pesticides.
Response to arguments
Applicant argues that neither Aulisa nor Jeschke teaches or suggests an oxygenated hydrocarbon compound (such as a polyethylene glycol alkyl ether compound or sulfonated alkyl ester compound) which is different from the polyoxyalkylene copolymer (b) and from the acrylic graft copolymer (c).
Applicant’s arguments have been fully considered but are not found to be persuasive. It is respectfully submitted that Aulisa teaches that the compositions described herein comprise from about 1 g/L to about 100 g/L of at least one wetting-dispersing agent, which may include dialkyl esters of sulfosuccinate salts, as set forth on page 5 of the previous Office Action.
Applicant further argue that the Examiner has failed to consider the unexpected results in the Specification as filed, citing Table 3 and asserts that unexpected and superior wettability and thermal stability are sufficient to overcome the alleged a prima facie case of obviousness.
Applicant’s arguments have been fully considered but are not found to be persuasive. It is respectfully submitted that unexpected results should be commensurate in scope with the claimed invention, See MPEP 716.02(d). Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980) (Claims were directed to a process for removing corrosion at "elevated temperatures" using a certain ion exchange resin (with the exception of claim 8 which recited a temperature in excess of 100°C). Appellant demonstrated unexpected results via comparative tests with the prior art ion exchange resin at 110°C and 130°C. The court affirmed the rejection of claims 1-7 and 9-10 because the term "elevated temperatures" encompassed temperatures as low as 60°C where the prior art ion exchange resin was known to perform well. The rejection of claim 8, directed to a temperature in excess of 100°C, was reversed.). See also In re Peterson, 315 F.3d 1325, 1329-31, 65 USPQ2d 1379, 1382-85 (Fed. Cir. 2003) (data showing improved alloy strength with the addition of 2% rhenium did not evidence unexpected results for the entire claimed range of about 1-3% rhenium); In re Grasselli, 713 F.2d 731, 741, 218 USPQ 769, 777 (Fed. Cir. 1983) (Claims were directed to certain catalysts containing an alkali metal. Evidence presented to rebut an obviousness rejection compared catalysts containing sodium with the prior art. The court held this evidence insufficient to rebut the prima facie case because experiments limited to sodium were not commensurate in scope with the claims.). In the instant case, the claims are directed to extremely large classes of surfactants (e.g. acrylic block copolymer, alkyl ether, etc.), while the compositions in the Table are directed to specific compounds in specified ratios. The claims are more broad than the evidence offered to support.
In addition, see MPEP 716.02(e). An affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness. In re Burckel, 592 F.2d 1175, 201 USPQ 67 (CCPA 1979). "A comparison of the claimed invention with the disclosure of each cited reference to determine the number of claim limitations in common with each reference, bearing in mind the relative importance of particular limitations, will usually yield the closest single prior art reference." In re Merchant, 575 F.2d 865, 868, 197 USPQ 785, 787 (CCPA 1978) (emphasis in original). Where the comparison is not identical with the reference disclosure, deviations therefrom should be explained, In re Finley, 174 F.2d 130, 81 USPQ 383 (CCPA 1949), and if not explained should be noted and evaluated, and if significant, explanation should be required. In re Armstrong, 280 F.2d 132, 126 USPQ 281 (CCPA 1960) (deviations from example were inconsequential).
Conclusion
No claims are allowed at this time.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LEAH H SCHLIENTZ whose telephone number is (571)272-9928. The examiner can normally be reached Monday-Friday, 8:30am - 12:30pm 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, MICHAEL HARTLEY can be reached at 571-272-0616. 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.
/LHS/
/Michael G. Hartley/Supervisory Patent Examiner, Art Unit 1618
Prosecution Insights