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 .
Status of Claims
Claims 1-15 are pending and are examined herein on the merits for patentability.
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 2-5, 8 and 13 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.
The phrase "preferably" in each of the claims renders the claims indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
In claim 13, the recitation of “(or biocide)” is indefinite because the use of parenthesis is unclear and it is unclear how it modifies the term prior to it, for example, is it a subset or preferred embodiment thereof. It is noted that it not merely an acronym. It is suggested that “(or biocide)” is deleted to overcome the rejection of claim 13.
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) 1-15 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).
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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).
Conclusion
No claims are allowed at this time.
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.
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/LHS/
/Michael G. Hartley/ Supervisory Patent Examiner, Art Unit 1618