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 .
Election/Restrictions
Applicant’s election with traverse of Group I, claims 1-12, in reply filed on 11/06/2025 is acknowledged. Additionally, claims 18 and 19, are included in Group I as they depend on instant claim 8 and are directed to a microparticle composition.
Claims 13-15 and 17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 11/06/2025.
Applicant argues that all the claims share a special technical feature and that unity of invention is supported by the international search report. Applicant also argues the claims have unity of invention because they are drawn to “(2) a product and process of use of said product.” Applicant further asserts that the Office considered the type of claim (i.e., composition, method) without considering the special technical feature.
These arguments are not persuasive. While the claims share a technical feature, that feature does not make a contribution over the prior art and is therefore not a special technical feature, regardless of the international search report. The shared technical feature is a microparticle comprising trifludimoxazin and a polycondensation product of amino and aldehyde compounds. As discussed in the Restriction Requirement (07/07/2025), this feature does not make a contribution over the prior art in view of WO 2017/068024. Accordingly, the claims lack unity of invention.
Applicant argues that the claims were not classified and a serious burden of search and examination was not shown. Applicant’s subsequent comments are moot insofar the restriction was based on lack of unity as opposed to search burden and the disclosed teaching of the supporting art was not tantamount to a rejection.
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.
Claim 12 is 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 12 recites the limitation "formaldehyde" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 103
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.
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.
1) Claims 1-7, 9-12 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Winkelman et al. (US 2018/0297001 A1, publication date 10/18/2018).
Regarding instant claims 1-4, 6, 7, 9 and 10, Winkelman discloses a “microparticles containing a water-insoluble, solid, non-polymeric, organic active material M, which is selected from the group consisting of agriculturally active compounds, and an aminoplast resin A which surrounds or embeds the material M” [0020]. Wherein the aminoplast resin is the polycondensation product of pre-condensate compounds [0023], such as aldehydes and amino compounds (see first sentence of [0046]). In example 9, Winkelman discloses a microparticle composition, as described above, comprising “66.7 g saflufenacil, 5.0 g surfactant 1, 24.1 g protective colloid 1, 15.2 g aminoplast pre-condensate P 1, 539 g deionised water” [0175]. Wherein protective colloid 1 is poly(2-acrylamido-2-methylpropane sulfonic acid) sodium salt [0140] which is an anionic polymeric surfactant comprising homo- or copolymers made from (meth)acrylamide monomers having sulfonic acid group (i.e., instant claims 6 and 7) [0075-0076]. Wherein surfactant 1 is sodium dodecyl sulfate (i.e., sodium lauryl sulfate; instants claim 9 and 19) [0142]. Wherein pre-condensate p1 is etherified melamine formaldehyde pre-condensates (i.e., a melamine formaldehyde resins; instant claim 2) [0143]. Wherein the d(0.5) value was 19 um (i.e., instant claim 5) [0177]. Wherein the composition is an aqueous suspension (i.e., instant claim 10) [0177]. Winkelman also discloses, with respect to the compositions generally, that suitable agriculturally active compounds (M) “include in particular the following compounds: herbicides, such as saflufenacil, pyroxasulfon, water-insoluble salts of dicamba, diuron, trifludimoxazin and pendimethalin” [0038]. As a note “average particle diameters can be determined by dynamic light scattering” [0029].
Winkelman does not anticipate the instant claims because trifludimoxazin is not disclosed in the examples.
However, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have simply substituted the saflufenacil of example 9 for trifludimoxazin because Winkelman discloses both actives are suitable herbicides for the agriculturally active material (M). One would have been motivated to make this substitution, and had an expectation of success in making this substitution, because Winkelman suggests a composition comprising trifludimoxazin as the active material (M) and discloses saflufenacil and trifludimoxazin as equivalent agriculturally active materials (M). The skilled artisan would have been motivated to substitute the trifludimoxazin of the broader disclosure in place of the saflufenacil of Example 9 for the agriculturally active compound with a reasonable expectation of success. The simple substitution of one known element (e.g., the trifludimoxazin of the broader disclosure) in place of another (e.g., the saflufenacil of Example 9) in order to achieve predictable results (agriculturally active compound) is prima facie obvious. See MPEP 2143, Exemplary Rationale B.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated an aqueous suspension comprising trifludimoxazin embedded in (or encapsulated by) a polycondensation product of a melamine formaldehyde resin (claims 1-2), an anionic polymeric surfactant made from homo- copolymers of a (meth)acrylamide monomer having sulfonic acid groups (claims 6-7) and sodium lauryl sulfate (claim 9 and 19). Wherein the D50 is within the instantly claimed range at 19 µm as determined by light scattering (claim 4). Wherein the composition comprises 66.7 grams active and 15.2 grams aminoplast polymer, or 18.5% aminoplast polymer based on the total of aminoplast polymer and active (claim 3).
Regarding instant claim 5, Winkelman discloses that “the microcapsules/microparticles obtained by the process of the present invention are discrete particles having usually a particle size of … particular less than 50 μm, given as d(0.9) value” [0119]. Winkelman also discloses milling to control particle size [0022].
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined the teaching of particles with a D90 of 50 um or less with the trifludimoxazin composition taught above. One would have been motivated to combine these elements because Winkelman desires particles with a D90 of 50 um or less. One would have had an expectation of success because Winkelman teaches milling to control the particle size. Additionally, in combining these elements one would have expected nothing more than predictable results because, when combined, each prior art element would have performed the same function as it had separately. See MPEP 2143, Exemplary Rationale A.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated the trifludimoxazin microparticle composition taught above wherein less than 10% by weight of the particles have a particle diameter of more than 50 um (i.e., D90 50 or less).
Regarding instant claim 11, Winkelman discloses “[f]rom the aqueous suspension obtained by the process as described herein, the microparticles can be isolated, e.g. by filtration or centrifugation, or the aqueous suspension may be spray-dried, granulated or freeze-dried, to obtain a solid composition in the form of a powder or granules” [0122].
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have further processed the composition of Example 9, as taught above as, to obtain a solid composition. One would have been motivated, and had an expectation of success because Winkelman suggest isolating the microparticles. See MPEP 2143, Exemplary Rationale A.
Regarding instant claims 12, as stated above, Winkelman discloses a “microparticles containing a water-insoluble, solid, non-polymeric, organic active material M, which is selected from the group consisting of agriculturally active compounds, and an aminoplast resin A which surrounds or embeds the material M” [0020]. Wherein the aminoplast resin is the polycondensation product of pre-condensate compounds [0023], such as aldehydes and amino compounds (see first sentence of [0046]). Winkelman also discloses that the aminoplast pre-condensates are present “in an amount in the range of 1 to 50% by weight … based on the material M” [0045] and that “the molar ratios of melamine to formaldehyde [pre-condensates] are generally in the range of 1:1.5 to 1:10” [0049].
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). The prior art range overlaps with the instant range because the combined teaching of pre-condensates in amounts of 1-50% w/w based on the active ingredient (M) (i.e., trifludimoxazin), and the pre-condensates molar ratio of 1:1.5 to 1:10 (melamine to formaldehyde), is a composition comprising 0.26-35% w/w based on the total weight of trifludimoxazin. The molar mass of melamine is about 126g/mol1 and the molar mass of formaldehyde is about 30g/mol2, thus the weight ratio of melamine to formaldehyde is about 126:45 to about 126:300. Therefore, the prior art teaches the pre-condensates comprise about 26% to about 70% w/w formaldehyde based on the weight of the pre-condensates, and the compositions comprises about 0.26-35% w/w formaldehyde based on the weight of active (i.e., trifludimoxazin). Accordingly, the instantly claimed range of formaldehyde based on the total weight of trifludimoxazin overlaps with the range taught in the prior art, and so a prima facie case of obviousness exists.
Therefore it, would have been obvious for one of ordinary skill in the art, at the time of filling, to have formulated a composition comprising a microparticle of trifludimoxazin and an aminoplast polymer, wherein the aminoplast is the product of pre-condensates and wherein formaldehyde is present within the instantly claimed amounts.
2) Claims 6, 8 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Winkelman et al. (US 2018/0297001 A1, publication date 10/18/2018) as applied to claims 1-7, 9-12 and 19 above, and further in view of Winowiski (US 2010/0278890 A1, publication date 11/04/2010).
Winkelman, which is taught above, differs from the instant claims insofar as it does not disclose a molecular weight of the lignosulfonic acid. Broadly, Winkelman discloses that aqueous suspension comprising a microparticle of trifludimoxazin embedded in, or encapsulated by, an aminoplast condensation product of an amino and aldehyde compound (see rejection above and Winkelman at [0020], [0023] & [0046]) may comprise a protective colloid which “are principally any water-soluble polymers which are known to stabilize suspensions of water-insoluble material” [0055]. Suitable anionic polymers include “liginin based sulfonic acid, such as lignosulfonic acid” [0059]. Winkelman also discloses the suspensions may be dried to obtain a powder [0122].
Winowiski relates to suspo-emulsions pesticide compositions and discloses “suspo-emulsions comprising pesticide actives may be prepared using a high purity, high molecular weight lignosulfonate as a stabilizer. The resulting suspo-emulsions may then be dried to obtain a powder or granular concentrate where the high molecular weight lignosulfonate acts as a solid matrix for the pesticide actives. The powder or granular concentrate formulations thus formed have high loading rates, good storage properties and are easily reconstituted when added to water” [abstract]. Winowiski discloses that the suspo-emulsions are formed by separately preparing an emulsion comprising the lignosulfonates (see lines 5-13 of [0010]) and a suspension comprising the lignosulfonates (see lines 21-32 of [0010]), then combining the separate emulsions and suspension (see last 5 lines of [0010]). More directly, Winowiski discloses “high molecular weight lignosulfonate as an emulsion stabilizer and suspension stabilizer for the first and second pesticide active, respectively” [0024]. The molecular weight of the lignosulfonic acid, or its salts, used for the suspension is between about 20kDa and about 100kDa (see line 38 of [0010]).
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected the lignosulfonic acids of Winowiski for the lignosulfonic acids desire by Winkelman because Winowiski discloses them as suitable for the purpose of stabilizing suspensions of pesticides that may be dried. One would have been motivated to make this selection because Winowiski discloses the lignosulfonates provide desirable effects such as high loading rates, good storage properties and are easily reconstituted when added to water.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). In making this selection the claimed molecular weight of the lignosulfonic acid (more than 10kDa) would have overlapped with the range in the prior art (20-100 kDa) and so a prima facie case of obviousness exists.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated a suspension comprising a microparticle of trifludimoxazin embedded in, or encapsulated by, an aminoplast condensation product of an amino and aldehyde compound and further comprising lignosulfonic acids with molecular weight within the claimed range.
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 1-12, 18 and 19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 and 22-23 of copending Application No. 18/265,460 in view of Winkelman et al. (US 2018/0297001 A1, publication date 10/18/2018) and Winowiski (US 2010/0278890 A1, publication date 11/04/2010).
The instant claims and the copending claims both disclose a microparticle composition comprising an active, wherein the active is present in the form of microparticles, which is surrounded or embedded by an aminoplast polymer, which is a polycondensation product of one or more amino compound and one or more aldehyde [instant claim 1; copending claim 1]. Wherein the aminoplast polymer is selected from the groups consisting of melamine formaldehyde resins and urea formaldehyde resins [instant claim 2; copending claim 5]. Wherein the amount of aminoplast polymer in the microparticle composition is from 0.5 to 40% by weight, based on the total weight of aminoplast polymer and active [instant claim 3; copending claim 4]. Wherein the microparticles have a weight average particle diameter d50 in a range from 1 to 25 um, as determined by dynamic light scattering of an aqueous dispersion of the microcapsules [instant claim 4; copending claim 8]. Wherein the microparticles comprise less than 10% by weight of particles having a particle diameter of more than 50 um [instant claim 5; copending claim 9]. Further comprising anionic polymeric surfactant is a homo- or copolymer of a (meth)acrylate monomer or a (meth)acrylamide monomer having a sulfonic acid group [instant claims 6-7; copending claims 10-11]. Wherein the composition may be a suspension or solid [instant claims 10-11; copending claims 13-14]. The copending claims also disclose the composition may comprise auxiliaries conventionally employed in plant protection formulations [copending claim 15] and that the aminoplast pre-condensate is initiated in the presence of at least one anionic polymeric surfactant having a plurality of sulfate or sulfonate groups [copending claim 20]. The copending claims disclose the active may be fluxapyroxad [copending claim 3].
The copending claims differ from the instant claims insofar as they do not disclose trifludimoxazin, lauryl sulfate, lignin sulfonic acids and an amount of formaldehyde based on the weight of the active agent.
Winkelman discloses that aqueous suspension comprising a microparticle of trifludimoxazin embedded in, or encapsulated by, an aminoplast condensation product of an amino and aldehyde compound (see rejection above and Winkelman at [0020], [0023] & [0046]) may comprise a protective colloid which “are principally any water-soluble polymers which are known to stabilize suspensions of water-insoluble material” [0055]. Suitable anionic polymers include “liginin based sulfonic acid, such as lignosulfonic acid” [0059]. Winkelman also discloses the suspensions may be dried to obtain a powder [0122] and that compositions may comprise sodium dodecyl sulfate (i.e., sodium lauryl sulfate) [0142]. Finally, Winkelman discloses the active may be fluxapyroxad or trifludimoxazin [0038]. Winkelman also discloses that the aminoplast pre-condensate is present “in an amount in the range of 1 to 50% by weight … based on the material M” [0045] and that “the molar ratios of melamine to formaldehyde [pre-condensate] are generally in the range of 1:1.5 to 1:10” [0049].
Winowiski relates to suspo-emulsions pesticide compositions and discloses “suspo-emulsions comprising pesticide actives may be prepared using a high purity, high molecular weight lignosulfonate as a stabilizer” [abstract]. The molecular weight of the lignosulfonic acid, or its salts, used for the suspension is between 20kDa and about 100kDa (see line 38 of [0010]).
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have simply substituted the fluxapyroxad of the copending claims for the trifludimoxazin of Winkelman because Winkelman discloses them both as suitable active agents to be embedded in aminoplast polymers. The skilled artisan would have been motivated to have substituted the trifludimoxazin of Winkelman in place of the fluxapyroxad of copending claims for active agent with a reasonable expectation of success. The simple substitution of one known element (e.g., the trifludimoxazin of Winkelman) in place of another (e.g., the fluxapyroxad of copending) in order to achieve predictable results (active agent) is prima facie obvious. See MPEP 2143, Exemplary Rationale B.
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected the lignosulfonic acids of Winowiski for the anionic polymer surfactant desired by the copending claims because Winowiski discloses them as suitable for the purpose of stabilizing suspensions of pesticides, and Winkelman discloses lignosulfonates are suitable for use with aminoplast pre-condensates.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). In making this selection the claimed molecular weight of the lignosulfonic acid (more than 10kDa) would have overlapped with the range in the prior art (20-100 kDa) and so a prima facie case of obviousness exists.
Similarly, the amount of formaldehyde suggested by Winkelman for similar compositions would have been obvious to use because it was disclosed as a suitable range. As a result, the instantly claimed range of formaldehyde base on the active agent would have overlapped with the prior art. The combined teaching of pre-condensates in amounts of 1-50% w/w based on the active ingredient (M) (i.e., trifludimoxazin), and the pre-condensates molar ratio of 1:1.5 to 1:10 (melamine to formaldehyde) is a composition comprising 0.26-35% w/w based on the total weight of trifludimoxazin. The molar mass of melamine is about 126g/mol and the molar mass of formaldehyde is about 30g/mol, thus the weight ratio of melamine to formaldehyde is about 126:45 to about 126:300. Therefore, the prior art teaches the pre-condensates comprise about 26% to about 70% w/w formaldehyde based on the weight of the pre-condensates, and the compositions comprises about 0.26-35% w/w formaldehyde based on the weight of active (i.e., trifludimoxazin). Accordingly, the instantly claimed range of formaldehyde based on the total weight of trifludimoxazin overlaps with the range taught in the prior art, and so a prima facie case of obviousness exists.
Therefore it, would have been obvious for one of ordinary skill in the art, at the time of filling, to have formulated a composition comprising a microparticle of trifludimoxazin and an aminoplast polymer, wherein the aminoplast is the product of pre-condensates and wherein formaldehyde is present within the instantly claimed amounts.
Finally, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have added the lauryl sulfate of Winkelman to the composition of the copending claims because the copending claims desire conventional auxiliaries. See MPEP 2143, Exemplary Rationale A.
This is a provisional nonstatutory double patenting rejection.
2) Claims 1-12, 18 and 19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 12,330,128 B2 in view of Winkelman et al. (US 2018/0297001 A1, publication date 10/18/2018) and Winowiski (US 2010/0278890 A1, publication date 11/04/2010).
The instant claims and the copending claims both disclose an aqueous suspension of an agricultural active and an aminoplast resin that surrounds or embeds the active [instant claim 1 and 10; copending claim 1]. Wherein the aminoplast pre-condensate is selected from melamine formaldehyde, urea formaldehyde, and mixtures thereof [instant claim 2; copending claim 2]. The instant claims and copending claims overlap with respect to the amount of pre-condensate [instant claim 3; copending claim 5] and the particle size [instant claims 4-5; copending claim 7]. The copending claims disclose a protective colloid such as a homo-or copolymer of a (meth) acrylate monomer having a sulfonic acid group, a (meth)acrylamide monomer having a sulfonic acid group [instant claims 6-7; copending claim 1].
The copending claims differ from the instant claims insofar as they do not disclose trifludimoxazin a lignin sulfonic acid, a solid composition and lauryl sulfate.
Winkelman discloses that aqueous suspension comprising a microparticle of trifludimoxazin embedded in, or encapsulated by, an aminoplast condensation product of an amino and aldehyde compound (see rejection above and Winkelman at [0020], [0023] & [0046]) may comprise a protective colloid which “are principally any water-soluble polymers which are known to stabilize suspensions of water-insoluble material” [0055]. Suitable anionic polymers include “liginin based sulfonic acid, such as lignosulfonic acid” [0059]. Winkelman also discloses the suspensions may be dried to obtain a powder [0122] and that compositions may comprise sodium dodecyl sulfate (i.e., sodium lauryl sulfate) [0142], which was employed to stabilize protective colloids [0084-0085]. Winkelman also discloses that the aminoplast pre-condensates are present “in an amount in the range of 1 to 50% by weight … based on the material M” [0045] and that “the molar ratios of melamine to formaldehyde [pre-condensate] are generally in the range of 1:1.5 to 1:10” [0049]. Finally, Winkelman discloses the active may be trifludimoxazin [0038].
Winowiski relates to suspo-emulsions pesticide compositions and discloses “suspo-emulsions comprising pesticide actives may be prepared using a high purity, high molecular weight lignosulfonate as a stabilizer” [abstract]. The molecular weight of the lignosulfonic acid, or its salts, used for the suspension is between 20kDa and about 100kDa (see line 38 of [0010]).
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have simply substituted the fluxapyroxad of the copending claims for the trifludimoxazin of Winkelman because Winkelman discloses them both as suitable active agents to be embedded in aminoplast polymers. The skilled artisan would have been motivated to have substituted the trifludimoxazin of Winkelman in place of the fluxapyroxad of copending claims for active agent with a reasonable expectation of success. The simple substitution of one known element (e.g., the trifludimoxazin of Winkelman) in place of another (e.g., the fluxapyroxad of copending) in order to achieve predictable results (active agent) is prima facie obvious. See MPEP 2143, Exemplary Rationale B.
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have to have selected the trifludimoxazin of Winkelman as the water insoluble agricultural active of the copending claims because Winkelman discloses trifludimoxazin is suitable for embedding in aminoplast polymers as disclosed by the copending claims
Similarly, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected the lignosulfonic acids of Winowiski for the anionic polymer surfactant desired by the copending claims because Winowiski discloses them as suitable for the purpose of stabilizing suspensions of pesticides, and Winkelman discloses lignosulfonates are suitable for use with aminoplast pre-condensates.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). In making this selection the claimed molecular weight of the lignosulfonic acid (more than 10kDa) would have overlapped with the range in the prior art (20-100 kDa) and so a prima facie case of obviousness exists.
Similarly, the amount of formaldehyde suggested by Winkelman for similar compositions would have been obvious to use because it was disclosed as a suitable range. As a result, the instantly claimed range of formaldehyde base on the active agent would have overlapped with the prior art. The combined teaching of pre-condensates in amounts of 1-50% w/w based on the active ingredient (M) (i.e., trifludimoxazin), and the pre-condensates molar ratio of 1:1.5 to 1:10 (melamine to formaldehyde) is a composition comprising 0.26-35% w/w based on the total weight of trifludimoxazin. The molar mass of melamine is about 126g/mol and the molar mass of formaldehyde is about 30g/mol, thus the weight ratio of melamine to formaldehyde is about 126:45 to about 126:300. Therefore, the prior art teaches the pre-condensates comprise about 26% to about 70% w/w formaldehyde based on the weight of the pre-condensates, and the compositions comprises about 0.26-35% w/w formaldehyde based on the weight of active (i.e., trifludimoxazin). Accordingly, the instantly claimed range of formaldehyde based on the total weight of trifludimoxazin overlaps with the range taught in the prior art, and so a prima facie case of obviousness exists.
Finally, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have added the lauryl sulfate of Winkelman to the protective colloid of the copending claims because Winkelman discloses it stabilizes the protective colloid. See MPEP 2143, Exemplary Rationale A.
3) Claims 1-12, 18 and 19 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 8,709,975 B2 in view of Winkelman et al. (US 2018/0297001 A1, publication date 10/18/2018) and Winowiski (US 2010/0278890 A1, publication date 11/04/2010).
The instant claims and the copending claims disclose an aqueous composition comprising an agricultural active encapsulated in a microparticle of a polymeric material, wherein the polymeric material may be an aminoresin (i.e., aminoplast) [instant claim 1; copending claim 1 and 4]. The instant claims and copending claims overlap with respect to the amount of polymeric material [instant claim 3; copending claim 5] and particle size [instant claims 4-5; copending claim 6]. The copending claims also disclose lignosulfonates [copending claim 1]. The copending claims disclose the active is pendimethalin [copending claim 1].
The copending claims differ from the instant claims insofar as they do not disclose trifludimoxazin, the specific aminoresin, the molecular weight of lignosulfonates, a polymeric surfactant from methacrylate or methacrylamide monomers, a solid composition and lauryl sulfate.
Winkelman discloses that aqueous suspension comprising a microparticle of trifludimoxazin embedded in, or encapsulated by, an aminoplast condensation product of an amino and aldehyde compound, e.g., melamine and formaldehyde (see rejection above and Winkelman at [0020], [0023] & [0046]) may comprise a protective colloid which “are principally any water-soluble polymers which are known to stabilize suspensions of water-insoluble material” [0055]. Suitable anionic polymers include “liginin based sulfonic acid, such as lignosulfonic acid” [0059] and homo- or copolymer of a (meth)acrylate monomer or a (meth)acrylamide monomer having a sulfonic acid group [claim 7]. Winkelman also discloses the suspensions may be dried to obtain a powder [0122] and that compositions may comprise sodium dodecyl sulfate (i.e., sodium lauryl sulfate) [0142], which was employed to stabilize protective colloids used in the condensation of the aminoplast [0084-0085]. Winkelman also discloses that the aminoplast pre-condensates are present “in an amount in the range of 1 to 50% by weight … based on the material M” [0045] and that “the molar ratios of melamine to formaldehyde [pre-condensate] are generally in the range of 1:1.5 to 1:10” [0049]. Finally, Winkelman discloses the active may be trifludimoxazin or pendimethalin [0038].
Winowiski relates to suspo-emulsions pesticide compositions and discloses “suspo-emulsions comprising pesticide actives may be prepared using a high purity, high molecular weight lignosulfonate as a stabilizer” [abstract]. The molecular weight of the lignosulfonic acid, or its salts, used for the suspension is between 20kDa and about 100kDa (see line 38 of [0010]).
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have simply substituted the pendimethalin of the copending claims for the trifludimoxazin of Winkelman because Winkelman discloses them both as suitable active agents to be embedded in aminoplast polymers (aminoresins). The skilled artisan would have been motivated to have substituted the trifludimoxazin of Winkelman in place of the pendimethalin of copending claims for active agent with a reasonable expectation of success. The simple substitution of one known element (e.g., the trifludimoxazin of Winkelman) in place of another (e.g., the pendimethalin of copending) in order to achieve predictable results (active agent) is prima facie obvious. See MPEP 2143, Exemplary Rationale B.
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected the aminoplast (aminoresin) polymeric walls of Winkelman for the aminoresin desired by the copending claims because Winkelman discloses they are suitable for microparticles encapsulating an agriculture actives, e.g., pendimethalin. In making this selection the (methy)acrylate and (meth)acrylamide polymers would have been obvious to add as the protective colloid and sodium lauryl sulfate would have been obvious to add to stabilize that colloid. Furthermore, it would have been obvious to provide the composition as a solid powder following the teachings of Winkelman.
Similarly, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected the molecular weights for the lignosulfonic acids of Winowiski for the lignosulfonic acids of the copending claims because Winowiski discloses that range is suitable for the purpose of stabilizing suspensions of pesticides.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). In making this selection the claimed molecular weight of the lignosulfonic acid (more than 10kDa) would have overlapped with the range in the prior art (20-100 kDa) and so a prima facie case of obviousness exists.
Similarly, the amount of formaldehyde suggested by Winkelman for similar compositions would have been obvious to use because it was disclosed as a suitable range. As a result, the instantly claimed range of formaldehyde base on the active agent would have overlapped with the prior art. The combined teaching of pre-condensates in amounts of 1-50% w/w based on the active ingredient (M) (i.e., trifludimoxazin), and the pre-condensates molar ratio of 1:1.5 to 1:10 (melamine to formaldehyde) is a composition comprising 0.26-35% w/w based on the total weight of trifludimoxazin. The molar mass of melamine is about 126g/mol and the molar mass of formaldehyde is about 30g/mol, thus the weight ratio of melamine to formaldehyde is about 126:45 to about 126:300. Therefore, the prior art teaches the pre-condensates comprise about 26% to about 70% w/w formaldehyde based on the weight of the pre-condensates, and the compositions comprises about 0.26-35% w/w formaldehyde based on the weight of active (i.e., trifludimoxazin). Accordingly, the instantly claimed range of formaldehyde based on the total weight of trifludimoxazin overlaps with the range taught in the prior art, and so a prima facie case of obviousness exists.
Technological Background
1) The prior art made of record is considered pertinent to applicant's disclosure. National Center for Biotechnology Information (2026). PubChem Compound Summary for CID 7955, Melamine. Retrieved February 2, 2026 from https://pubchem.ncbi.nlm.nih.gov/compound/Melamine. NCBI Melamine is pertinent for teaching the molar mass of melamine.
2) The prior art made of record is considered pertinent to applicant's disclosure. National Center for Biotechnology Information (2026). PubChem Compound Summary for CID 712, Formaldehyde. Retrieved February 2, 2026 from https://pubchem.ncbi.nlm.nih.gov/compound/Formaldehyde. NCBI Formaldehyde is pertinent for teaching the molar mass of formaldehyde.
Conclusion
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/C.T.W./Examiner, Art Unit 1612
/WALTER E WEBB/Primary Examiner, Art Unit 1612
1 NCBI. PubChem Compound Summary for CID 7955, Melamine.
2 NCBI. PubChem Compound Summary for CID 712, Formaldehyde.