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 .
Formal Matters
Receipt of Applicant’s response dated 06/18/2026 is acknowledged.
Claims 1-20 and 22-23 are pending.
Claim 21 is canceled.
Claims 1-4, 7-9, and 22 are amended.
Claims 16-20 and 22-23 remain withdrawn from consideration as being drawn to a nonelected invention.
Claims 11 and 14 remain withdrawn from consideration as being drawn to nonelected species.
Claims 1-10, 12-13, and 15 are under consideration in the instant Office action to the extent of the elected species, i.e., the one or more fungicide F is fluopyram, the aminoplast polymer is melamine formaldehyde resins, the at least one anionic polymeric surfactant having a plurality of sulfate or sulfonate groups is poly-AMPS and naphthalene sulfonate condensate, the form of the microparticles is aqueous suspensions of the microparticles, and the one or more auxiliaries is xanthan gum.
OBJECTIONS/REJECTIONS WITHDRAWN
Claim Objections
The objection set forth in the Office action dated 03/27/2026 is hereby withdrawn in light of Applicant’s amendments to claim 7.
Claim Rejections - 35 USC § 112(b)
The rejections set forth in the Office action dated 03/27/2026 are hereby withdrawn in light of Applicant’s amendments to the claims.
Claim Rejections - 35 USC § 103
The rejection set forth in the Office action dated 03/27/2026 is hereby withdrawn in light of Applicant’s amendments to the claims and in favor of the new grounds of rejection set forth below as necessitated by Applicant’s amendments to the claims.
NEW GROUNDS OF REJECTION
Claim Rejections - 35 USC § 112(b)
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 6-7 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.
Each of claims 6-7 recite the limitation “fungicide F". There is insufficient antecedent basis for “fungicide F” in each of the claims because neither claim 6/7 nor claim 1 earlier recite “a fungicide F”, however claim 1 earlier recites “one or more fungicide F”. Therefore, it is unclear whether each recitation of ‘fungicide F’ in each of claims 6 and 7 refers to just one of the one or more fungicide F, at least one of the one or more fungicide F, all of the one or more fungicide F, or whether something else is meant by the phrase. As written, one skilled in the art would not be reasonably apprised of the metes and bounds of the claim. The Examiner suggests amending “fungicide F” in each of claims 6 and 7 to “the one or more fungicide F” in order to overcome this rejection. It is noted that this amendment was requested by the Examiner in rejection (a) under 35 USC 112(b) set forth in the Office action dated 03/27/2026.
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.
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.
Claims 1-10, 12-13, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Konradi et al (US 2012/0244095 A1, published 09/27/2012) as evidenced by Croda Agriculture (“Capsule suspension (CS)”, accessed 09/10/2026).
Konradi et al teach compositions including biocide compositions, in particular a plant protection composition and especially a fungicidal composition, containing polymeric, ionic compounds comprising imidazolium groups (See entire document, e.g., [0001], [0029]-[0030]). Konradi et al teach that use of the polymeric, ionic compound comprising imidazolium groups in combination with at least one agrochemically active compound V results in many cases in an expansion of the fungicidal spectrum of activity being obtained or in a prevention of fungicide resistance development and in many cases synergistic effects are obtained (e.g., [0340]). Suitable compounds that can be used as the at least one agrochemically active compound V may be selected from a list including A) respiration inhibitors including inhibitors of complex II such as fluopyram and E) inhibitors of amino acid and protein synthesis including methionine synthesis inhibitors (anilino-pyrimidines) (e.g., [0341]-[0342], [0345], [0357]-[0358]). Preference is given to mixtures comprising as compound V at least one active substance selected from group A) and particularly selected from a list including fluopyram (e.g., [0425]).
Suitable composition types include suspensions and capsules, and suitable auxiliaries include surfactants and thickeners (e.g., [0457], [0459]). Suitable surfactants include anionic surfactants, e.g. sulfonates of condensed naphthalenes (e.g., [0462]-[0463]). Suitable thickeners include polysaccharides, e.g. xanthan gum (e.g., [0468]). When the composition type is in the form of microcapsules, specifically CS (i.e., capsule suspension), an oil phase comprising 5-50 wt % of the active substances, 0-40 wt % of an water insoluble organic solvent, and 2-15 wt % of monomers is dispersed into an aqueous solution of a protective colloid followed by radical initiator-initiated radical polymerization resulting in the formation of microcapsules, where wt % relate to the total CS composition (e.g., [0481]).
Konradi et al teach suitable polymers for the compositions as very generally, anionic, cationic, amphoteric and neutral polymers, wherein suitable polymers include polymers comprising sulfonic groups such as polyacrylamidesulfonic acid salts, e.g. polyacrylamidomethylpropanesulfonic acid sold under the name COSMEDIA POLYMER HSP 1180 by Henkel (e.g., [0627], [0629]-[0630]). Konradi et al teach that the compositions may comprising thickening polymers including nonionic polymers and that preferred thickening polymers include acrylic polymers (e.g., [0693]-[0694]). Konradi et al teach that the composition can be provided in the form of an antimicrobial polymer composition or coating composition, wherein the polymer composition or the coating composition comprises the at least one polymeric, ionic compound comprising imidazolium groups, optionally at least further microbicidal compound different from the at least one polymeric, ionic compound comprising imidazolium groups, and optionally at least one polymer (e.g., [0877], [0879]-[0882]). The at least one polymer may be selected from a list including melamine/formaldehyde resins (e.g., [0910]).
The specific combination of features claimed is disclosed within the broad generic ranges taught by Konradi et al but such “picking and choosing” within several variables does not necessarily give rise to anticipation (Corning Glass Works v. Sumitomo Elec., 868 F.2d 1251, 1262 (Fed. Circ. 1989)). That being said, however, it must be remembered that “[w]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious” (KSR v. Teleflex, 127 S.Ct. 1727, 1740 (2007) (quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976)). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious,” the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 U.S.C. 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ” (KSR at 1741). The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton” (Id. at 1742).
Consistent with this reasoning, it would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have selected various combinations of various disclosed ingredients of a composition from within the prior art disclosure of Konradi et al, and arrive at a biocide composition, especially a fungicidal composition, in the form of a microcapsule CS (i.e., capsule suspension) composition comprising an polymeric, ionic compound comprising imidazolium groups in combination with fluopyram as the at least one agrochemically active compound V, sulfonates of condensed naphthalenes as surfactant, xanthan gum as thickener, polyacrylamidomethylpropanesulfonic acid sold under the name COSMEDIA POLYMER HSP 1180 by Henkel, melamine/formaldehyde resins, and acrylic polymers as polymers, wherein the capsule suspension is formed by radical polymerization of an oil phase comprising 5-50 wt % of the active substances (i.e., the polymeric, ionic compound comprising imidazolium groups and fluopyram) and 2-15 wt % of the polymer materials (i.e., polyacrylamidomethylpropanesulfonic acid sold under the name COSMEDIA POLYMER HSP 1180 by Henkel, melamine/formaldehyde resins, and acrylic polymers) with an aqueous phase comprising a protective colloid, where wt % is relative to the total CS composition.
The composition of Konradi et al in the form of a microcapsule CS (i.e., capsule suspension) composition meets the limitations of ‘a microparticle composition comprising fluopyram (the elected species of the one or more fungicide F) surrounded or embedded by melamine formaldehyde resins (the elected species of the aminoplast polymer)’ required by instant claim 1 and ‘an aqueous suspension of the microparticles’ required by instant claim 13 because a capsule suspension is a combination of an active ingredient encapsulated in a polymer shell suspended in water as evidenced by Croda Agriculture (See Page 1).
The composition of Konradi et al in the form of a microcapsule CS (i.e., capsule suspension) composition meets the limitations of instant claims 8-9 because capsule suspensions have particles in the size range of 0.1 to 20 µm as evidenced by Croda Agriculture (See Page 2). The composition of Konradi et al comprising 5-50 wt % of the polymeric, ionic compound comprising imidazolium groups and fluopyram and 2-15 wt % of polyacrylamidomethylpropanesulfonic acid sold under the name COSMEDIA POLYMER HSP 1180 by Henkel, melamine/formaldehyde resins, and acrylic polymers, where wt % is relative to the total CS composition, necessarily overlaps the ranges required by instant claims 6-7. A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art (In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003)).
Because Konradi et al teach that suitable compounds that can be used as the at least one agrochemically active compound V may be selected from a list including E) inhibitors of amino acid and protein synthesis including methionine synthesis inhibitors (anilino-pyrimidines), the composition of Konradi et al does not require methionine synthesis inhibitors (anilino-pyrimidines) and, therefore, the composition of Konradi et al in the absence of methionine synthesis inhibitors (anilino-pyrimidines) as compound V meets the limitation of ‘the microparticle composition is free from anilinopyrimidine compounds’ of instant claim 1.
Regarding the selection of components from lists within the teaching of Konradi et al, it is well settled that it is a matter of obviousness for one of ordinary skill in the art to select a particular component from among many disclosed by the prior art as long as it is taught that the selection will result in the disclosed effect, even when the possible selections number 1200 or in the thousands (Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985)).
Thus, the composition of Konradi et al renders obvious instant claims 1-10, 12-13, and 15 to the extent of the elected species.
Response to Applicant’s Arguments
Applicant’s arguments filed 06/18/2026 regarding the teaching of Noller et al (WO 2017/021159 A1, published 02/09/2017, cited in IDS dated 06/06/2023) have been fully considered by the Examiner but are moot as the rejection under 35 USC 103 over Noller et al set forth in the Office action dated 03/27/2026 has been withdrawn and the teaching of Noller et al is not being applied in a prior art rejection in the instant Office action.
Conclusion
No claims are allowable.
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.
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/K.E.O./Examiner, Art Unit 1619
/NICOLE P BABSON/Primary Examiner, Art Unit 1619
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