DETAILED ACTION
Receipt is acknowledged of applicant’s Preliminary Amendment filed 7/29/2024.
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 1-7 have been amended. No claims were cancelled or newly added. Accordingly, claims 1-8 remain pending in the application and are currently under examination.
Information Disclosure Statement
The IDS’s filed 8/23/2023 and 11/30/2023 have been considered. Signed copies are enclosed herewith.
Claim Objections
Claims 1-3 are objected to because of the following informalities: the words, “Chlorantraniliprole”, “Methosyfenozide”, “Deltamethrin” and “Lambda-Cyhalothrin” should all be lower case at every recitation. Appropriate correction is requested.
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 1-8 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.
Claims 1 and 2 include periods in the middle of the claim (e.g., “a.”, “b.”, “c.”, “d.”), and as such the claim is indefinite because it is unclear whether the language following the period further limits the claimed invention. See MPEP 608.01(m).
Dependent claims 3-8 do not remedy the indefinite issue and as such said dependent claims suffer from the same deficiency.
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 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over GSP Crop Science PVT, LTD. (IN 2016/21027690 A, Feb. 16, 2018, hereafter as “GSP”).
The claimed invention is drawn to a synergistic insecticidal composition comprising: chlorantraniliprole; methoxyfenozide; at least one compound selected from deltamethrin and lambda-cyhalothrin; and one or more excipients.
Regrading instant claim 1, GSP teaches a synergistic pesticidal composition comprising a) methoxyfenozide, b) at least one insecticide selected from indoxacarb and emamectin benzoate, c) at least one more insecticide selected from bifenthrin, cypermethrin, deltamethrin, fenpropathrin, lambda cyhalothrin, acephate, chlorpyrifos, profenofos, quinalphos, triazophos, acetamiprid, clothianidin, imidacloprid, thiamethoxam, novaluron, lufenuron, chlorfluazuron, pyriproxyfen, chlorantraniliprole, cyantraniliprole, flubendiamide, abamectin, spinetoram, spinosad, chlorfenapyr, diafenthiuron, fipronil, pyridalyl and tolfenpyrad with one or more inactive excipients (page 1, lines 2-11).
GSP 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 GSP teaches a finite group of compounds including chlorantraniliprole, methoxyfenozide, deltamethrin, and lambda-cyhalothrin that are suitable for the pesticidal composition and it is prima facie obvious to combine equivalents known for the same purpose (MPEP 2144.06).
Regarding instant claims 2 and 3, GSP teaches the elements discussed above. GSP also teaches methoxyfenozide in amounts of 0.1-40% and at least one more insecticide selected from bifenthrin, cypermethrin, deltamethrin, fenpropathrin, lambda cyhalothrin, acephate, chlorpyrifos, profenofos, quinalphos, triazophos, acetamiprid, clothianidin, imidacloprid, thiamethoxam, novaluron, lufenuron, chlorfluazuron, pyriproxyfen, chlorantraniliprole, cyantraniliprole, flubendiamide, abamectin, spinetoram, spinosad, chlorfenapyr, diafenthiuron, fipronil, pyridalyl and tolfenpyrad in range of 0.1-40% (claim 7).
While GSP does not teach the particular formulations of instant claims 2 and 3, 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.
Regarding instant claim 4, GSP teaches the elements discussed above. GSP also teaches that the composition can be in various physical forms including a dustable powder (DP), a gel, a wettable powder (WP), a granule (GR) (such as an emulsifiable granule (EG) or more particularly a water-dispersible granule (WG)), a water-dispersible tablet (WT), an emulsifiable concentrate (EC), a micro-emulsifiable concentrate, an oil-in-water emulsion (EW), an oil flowable (a spreading oil (SO)), an aqueous dispersion (aqueous suspension concentrate (SC)), an oily dispersion (OD), a suspo-emulsion (SE), a capsule suspension (CS), a soluble liquid, a water-soluble concentrate (with water or a water-miscible organic solvent as carrier) (page 7, lines 14-22).
Regarding instant claim 5, GSP teaches the elements discussed above. GSP also teaches that a preferred composition is in the form of a suspension concentrate (SC) (claim 6).
Regarding instant claim 6, GSP teaches the elements discussed above. GSP also teaches various excipients including dispersants, anti-freezing agents, anti-foaming agents, wetting agents, suspension aids, anti-microbial agents, thickeners, solvents, etc. (page 16, lines 4-8). GSP teaches various excipients and amounts thereof exemplified in the Examples. For example, acrylic graft copolymer (dispersing agent) is exemplified in an amount of 3% (Example 1), monoethylene glycol (an anti-freeze agent) is exemplified in an amount of 5% (Example 1), N-methyl-2-pyrrildone (a solvent) is exemplified in an amount of 7% (Example 3) and C9 (a solvent) is exemplified in an amount of 5% (Example 2).
Regarding instant claim 7, GSP teaches the elements discussed above. GSP also teaches the particular dispersants, sodium naphthalene sulphonate formaldehyde condensates; tristyrylphenolethoxylate phosphate esters; aliphatic alcohol ethoxylates; alky ethoxylates; EO-PO block copolymers; and graft copolymers or mixtures thereof; the particular wetting agents, sodium dioctylsulphosuccinate and alkyl phenol ethoxylates (non-ionic ethoxylates); the particular emulsifiers, ethylene oxide/propylene oxide block copolymers; particular anti-freeze agents, polyethylene glycols, methoxypolyethylene glycols, polypropylene glycols, polybutylene glycols, glycerin and ethylene glycol; the particular defoamers, aqueous emulsions of dimethyl polysiloxane; the particular biocides, 2-methyl-4-isothiazolin-3-one and 5-chloro-2-methyl-4 isothiazolin-3-one (isothiazolinones); the particular thickener, xanthan gum; and the particular carrier (solvent), water (page 16, lines 9 – page 19, lines 28).
Regarding instant claim 8, GSP teaches the elements discussed above. It is noted that claim 8 further limits the capsule forming monomer I and II of claim 6. However, claim 6 only requires one of the excipient species listed and claim 8 does not set out that a capsule forming monomer is a required element. GSP teaches the elements of claim 6, as discussed above and, as such, also meets the limitations of claim 8.
Thus, the teachings of GSP render the instant claims prima facie obvious.
Claims 1-8 are 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 described above.
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 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 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 an foamable formulation having insecticidal properties.
Regrading instant claims 2 and 3, Martin teaches the elements discussed above. 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).
While Martin does not teach the particular formulations of instant claims 2 and 3, 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 including 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 teaches various excipients and amounts thereof exemplified in the Examples. For example, Kelzan (xanthan gum, a thickener) is exemplified (Example 1), 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).
Regarding instant claim 8, Martin teaches the elements discussed above. It is noted that claim 8 further limits the capsule forming monomer I and II of claim 6. However, claim 6 only requires one of the excipient species listed and claim 8 does not set out that a capsule forming monomer is a required element. Martin teaches the elements of claim 6, as discussed above and, as such, also meets the limitations of claim 8.
Thus, the teachings of Martin render the instant claims prima facie obvious.
Claims 6 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over GSP Crop Science PVT, LTD. (IN 2016/21027690 A, Feb. 16, 2018, hereafter as “GSP”), 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.
GSP teaches the elements discussed above including a capsule suspension formulation (page 7, lines 19-21; claim 5).
GSP is silent to a capsule forming monomer I and II present in an amount in the range from 0.2 to 3% w/w (instant claim 6), wherein the capsule forming monomer I is selected from polyisocyanate, toluene di-isocyanate and tri-isocyanate present in an amount in the range from 0.5 to 3% w/w and the capsule forming monomer II is selected from ethylenediamine, diethylenetetramine and hexaethylenediamine present in an amount in the range from 0.2 to 2% w/w (instant claim 8). It is noted that the examiner is interpreting “a capsule forming monomer I and II present in an amount in the range from 0.2 to 3% w/w” (instant claim 6) to mean that both a capsule forming monomer I and a capsule forming monomer II are each present in an amount of 0.2 to 3%.
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 GSP 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 GSP 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 GSP and Brown render the instant claims prima facie obvious.
Claims 6 and 8 are 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 0.2 to 3% w/w (instant claim 6), wherein the capsule forming monomer I is selected from polyisocyanate, toluene di-isocyanate and tri-isocyanate present in an amount in the range from 0.5 to 3% w/w and the capsule forming monomer II is selected from ethylenediamine, diethylenetetramine and hexaethylenediamine present in an amount in the range from 0.2 to 2% w/w (instant claim 8). It is noted that the examiner is interpreting “a capsule forming monomer I and II present in an amount in the range from 0.2 to 3% w/w” (instant claim 6) to mean that both a capsule forming monomer I and a capsule forming monomer II are each present in an amount of 0.2 to 3%.
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.
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.
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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/CASEY S HAGOPIAN/Examiner, Art Unit 1617
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