DETAILED ACTION
Receipt is acknowledged of applicant’s Amendment/Remarks filed June 1, 2026.
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 the Claims
Claims 1, 3 and 5-7 have been amended. It is noted that claims 7 has the incorrect claim identifier “previously presented”. Claims 2 and 8 are cancelled. No claims are newly added. Accordingly, claims 1 and 3-7 remain pending in the application and are currently under examination.
Withdrawn Objections/Rejections
Applicant’s amendment renders the objections to claims 1-3 moot. Specifically, claim 2 has been cancelled and claims 1 and 3 have been amended to remedy the minor informalities. Thus, said objections have been withdrawn.
Applicant’s amendment renders the rejection of claims 1-8 under 35 USC 112(b) moot. Specifically, the claims have been amended to remedy the indefinite issues. Thus, said rejection has been withdrawn.
Applicant’s amendment renders the rejection of claims 1-8 under 35 USC 103 over GSP moot. Specifically, the claims have been amended to recite “consisting of” language and GSP requires at least one insecticide selected from indoxacarb and emamectin which is effectively excluded from the instant claims. Thus, said rejection has been withdrawn.
Applicant’s amendment renders the rejection of claims 6 and 8 under 35 USC 103 over GSP in view of Brown moot. Specifically, the claims have been amended to recite “consisting of” language and GSP requires at least one insecticide selected from indoxacarb and emamectin which is effectively excluded from the instant claims. Thus, said rejection has been withdrawn.
Maintained/Modified Rejections
The following rejections are maintained, but modified according to the claim amendments:
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.
Claims 1 and 3-7 stand rejected under 35 U.S.C. 103 as being unpatentable over Martin et al. (WO 2015/048757 A2, Apr. 2, 2015, hereafter as “Martin”).
The claimed invention is drawn to a synergistic insecticidal composition consisting of: chlorantraniliprole in an amount of 1% to 30% w/w; methoxyfenozide in an amount of 1% to 30% w/w; at least one compound selected from deltamethrin and lambda-cyhalothrin in an amount of 1% to 10% w/w; and one or more excipients.
Regrading instant claim 1, Martin teaches foamable formulations comprising agriculturally active ingredients (abstract). Martin teaches insecticides including the particular insecticides, chlorantraniliprole, methoxyfenozide, deltamethrin and lambda-cyhalothrin as suitable active ingredients ([41]-[42]). Martin also teaches combinations of insecticides are permitted ([42]). Martin also teaches the inclusion of one or more excipients such as a foaming agent, a stabilizer (e.g., xanthan gum), a dispersant, a preservative (biocide), water (a solvent), etc. ([36]; Examples; claims 1, 5 and 7). Martin also teaches that an active ingredient can be present at a concentration of at least 13%, at least 17% and at least 23% (claims 21-23) and additionally exemplifies formulations comprising various amounts of active ingredient in the range of 18.40% - 61.12% (Examples).
Martin is silent to the particular combination of chlorantraniliprole; methoxyfenozide; and at least one compound selected from deltamethrin and lambda-cyhalothrin.
However, 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 select the particular combination of chlorantraniliprole; methoxyfenozide; and at least one compound selected from deltamethrin and lambda-cyhalothrin with a reasonable expectation of success because Martin teaches a finite group of compounds including chlorantraniliprole, methoxyfenozide, deltamethrin, and lambda-cyhalothrin that are suitable for the foamable formulation and it is prima facie obvious to combine equivalents known for the same purpose (MPEP 2144.06). One of ordinary skill would have reasonably expected a foamable formulation having insecticidal properties.
Martin is also silent the particular amounts of 1% to 30% w/w of chlorantraniliprole; 1% to 30% w/w of methoxyfenozide; and 1% to 10% w/w of at least one compound selected from deltamethrin and lambda-cyhalothrin.
However, 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 further optimize the amounts of each of the ingredients by way of routine experimentation. MPEP 2144.05(II)(A) states,
Generally, differences in concentration or temperature will 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."
A skilled artisan would have been motivated to do so because it is the normal desire of scientists or artisans to improve upon what is already generally known to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.
Regrading instant claim 3, Martin teaches the elements discussed above.
Martin is silent to the particular amounts of a) 6% w/w of chlorantraniliprole; b) 21% w/w of methoxyfenozide; and c) 1.25% w/w of deltamethrin or 1.5% w/w of lambda-cyhalothrin.
However, 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 further optimize the amounts of each of the ingredients by way of routine experimentation. MPEP 2144.05(II)(A) states,
Generally, differences in concentration or temperature will 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."
A skilled artisan would have been motivated to do so because it is the normal desire of scientists or artisans to improve upon what is already generally known to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.
Regrading instant claim 4, Martin teaches the elements discussed above. Martin also teaches that the foamable formulations can be in any conventional appropriate form including an emulsion concentrate (EC), a suspension concentrate (SC), a suspo-emulsion (SE), a capsule suspension (CS), a water dispersible granule (WG), an emulsifiable granule (EG), a water in oil emulsion (EO), an oil in water emulsion (EW), a micro-emulsion (ME), an oil dispersion (OD), an oil miscible flowable (OF), an oil miscible liquid (OL), a soluble concentrate (SL), an ultra-low volume suspension (SU), an ultra-low volume liquid (UL), a dispersible concentrate (DC), a wettable powder (WP) or any technically feasible formulation in combination with agriculturally acceptable adjuvants ([49]).
Regarding instant claim 5, Martin teaches the elements discussed above. Martin also teaches that a preferred composition is in the form of a suspension concentrate (SC) ([40]; Examples; claim 17).
Regarding instant claims 6 and 7, Martin teaches the elements discussed above. Martin also teaches various excipients such as a foaming agent (e.g., ethoxylated myristamide – a non-ionic ethoxylate), a stabilizer (e.g., xanthan gum), a dispersant, a preservative (biocide), water (a solvent), etc. ([36]; Examples; claims 1, 5 and 7). Foaming agents are taught to be in concentrations of about 0.1% to about 50%, preferably between about 0.3% to about 30% and stabilizers (e.g., xanthan gum) are taught to be in concentrations of 0.1-15% ([50] and [52]). Martin teaches various excipients and amounts thereof exemplified in the Examples. For example, Kathon ICP/CP (a biocide) is exemplified in an amount of 0.1% (Example 1), water (a solvent) is exemplified in amounts of 5.58% and 9.9% (Examples 1 and 2), and Proxel GXL (20% aqueous dipropylene glycol solution of 1,2-benzisothiazolin-3-one, a biocide) is exemplified in an amount of 0.1% (Example 4). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists (MPEP 2144.05(I)).
Thus, the teachings of Martin render the instant claims prima facie obvious.
Response to Arguments
Applicant's arguments, filed June 1, 2026, regarding the 103 rejection over Martin have been fully considered but they are not persuasive.
Applicant argues that Martin is a very broad disclosure and does not reasonably provide guidance to selection (1) Applicant’s particular components, (2) combine Applicant’s particular components, and (3) select Applicant’s claimed concentration. Applicant states about 152 insecticides are disclosed in paragraph 42 however there is no guidance to select and combine the claimed components, particularly since Martin focuses on a composition with a single active vs. a combination of actives (see Examples).
In response, it is respectfully submitted that a reference is relevant for all that it teaches and disclosed examples or preferred embodiments do not constitute a teaching away from a broader disclosure (MPEP 2123). A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments (MPEP 2123). As discussed in the rejection above, Martin discloses each of the claimed components; that a combination of insecticides is permitted; and concentrations of an active that are suitable for the formulation. Martin also does not require any additional components that are effectively excluded (i.e., “consisting of” language) from the claimed invention. Martin teaches the general conditions of the claimed invention. Selecting the particular combination of active ingredients (insecticides) and amounts thereof is within a skilled artisan’s ability to optimize by routine experimentation depending on the intended target and desired result. It is further noted that combining equivalents known for the same purpose is prima facie obvious (MPEP 2144.06).
Thus, for these reasons, Applicant’s arguments are found unpersuasive. Said rejection is maintained.
Claim 6 stands rejected and amended clam 7 is newly rejected under 35 U.S.C. 103 as being unpatentable over Martin et al. (WO 2015/048757 A2, Apr. 2, 2015, hereafter as “Martin”), as applied to claim 1 above, in view of Brown et al. (EP 0369614 A1, May 23, 1990, hereafter as “Brown”).
The claimed invention is described above.
Martin teaches the elements discussed above including a capsule suspension formulation ([49]).
Martin is silent to a capsule forming monomer I and II present in an amount in the range from 0.5 to 3% w/w and 0.2 to 2% w/w, respectively (instant claim 6), the capsule forming monomer I is selected from polyisocyanate, toluene di-isocyanate and tri-isocyanate and the capsule forming monomer II is selected from ethylenediamine, diethylenetetramine and hexaethylenediamine (instant claim 7).
Brown teaches insecticidal formulations in capsule suspension form (abstract). Brown exemplifies a particular capsule suspension formulation comprising toluene di-isocyanate in an amount of 3% by weight and ethylenediamine in an amount of 1% (Example 1). Brown also teaches that a water soluble reactive monomer such as ethylenediamine reacts with an oil soluble monomer such as toluene di-isocyanate to form a capsule wall and encapsule the insecticidal composition (page 3, lines 9-18).
Both Martin and Brown are drawn to insecticidal formulations in capsule suspension form, thus, 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 include toluene di-isocyanate in an amount of 3% by weight and ethylenediamine in an amount of 1%, as suggested by Brown, into the invention of Martin with a reasonable expectation of success. A skilled artisan would have been motivated to do so because Brown teaches that ethylenediamine reacts with toluene di-isocyanate to form a capsule wall and encapsule the insecticidal composition, thereby, effectively forming a capsule suspension formulation.
Thus, the combined teachings of Martin and Brown render the instant claims prima facie obvious.
Response to Arguments
Applicant's arguments, filed June 1, 2026, regarding the 103 rejection over Martin and Brown have been fully considered but they are not persuasive.
Applicant relies on the same arguments as presented for the 103 rejection over Martin. No further arguments regarding claims 6 and 7 are presented. Remarks, page 8.
For the same reasons as discussed above, Applicant’s arguments are not persuasive.
Thus, said rejection is maintained.
New Objections
In light of Applicant’s amendments, the following objections have been newly added:
Claim Objections
Claim 6 is objected to because of the following informalities:
the claim recites, “the excipient” in line 1 of the claim. Claim 6 depends from claim 1. Claim 1 recites, “one or more excipients”. For improved clarity and consistency, it is suggested that “the excipient” is replaced with “the one or more excipients”; and.
the claim recites a Markush group of excipients. It is suggested that the word “and” is inserted at the end of line 11.
Claim 7 is objected to because of the following informalities: the claim is missing a semicolon (;) at the end of line 20.
Appropriate correction is requested.
Observations
The examiner acknowledges the evaluations of synergism in the instant specification. MPEP 716.02(a) states, “Evidence of a greater than expected result may also be shown by demonstrating an effect which is greater than the sum of each of the effects taken separately (i.e., demonstrating ‘synergism’)”. It is also important to note that unexpected results such as synergism must be commensurate in scope with the claimed invention (MPEP 716.02(d)). The data provided is based on very particular formulations having specific percentages of each ingredient (actives and excipients) in the suspension concentrate formation and mixed formulation of capsule suspension and suspension concentrate. The data is also based on the effects of a particular pest (Early shoot borer). None of the claims set out all of the particular parameters of the synergistic data. Accordingly, while the instant specification appears to demonstrate synergism, the data is not commensurate in scope with the claimed invention.
Conclusion
All claims have been rejected; no claims are allowed.
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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CASEY HAGOPIAN whose telephone number is (571)272-6097. The examiner can normally be reached on M-F 9:00 am - 5:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue Liu can be reached on 571-272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Casey S. Hagopian
Examiner, Art Unit 1617
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616
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