DETAILED ACTION
Previous Rejections
Applicant’s arguments, filed April 17, 2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on April 17, 2026 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Status
Claim 11 is cancelled.
Claims 1 – 10 and 12 - 59 are examined here-in.
Claim Rejections - 35 USC § 103 (Maintained)
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 non-obviousness.
Claims 1, 3, 5 – 8, 12 – 19, 24, 25, 28 – 37, and 39 – 48 are rejected under 35 U.S.C. 103 as being unpatentable over Endo (US 2015/0164068 A1, of record) in view of Roux (US 2018/0007897 A1, of record).
Endo teaches a water-dispersible granule formulation containing agrochemical active ingredients (abstract, paragraphs 0009 – 0012).
Endo teaches the water-dispersible granule formulation contains agrochemical active ingredient in an amount ranging from 0.02 to 90% by mass (paragraph 0103).
Endo teaches the formulation also contains a dispersion aid in an amount from 1 to 10% by mass (paragraph 0124). Endo teaches the dispersion aid can be polyoxyethylene, polyoxypropylene, or polyoxyethylene-polyoxypropylene block copolymers, among other compounds (paragraph 0123).
Endo teaches the formulation contains a hygroscopic water-soluble powder as a carrier in the amount of 10 to 99% by mass (paragraphs 0065, 0066).
Endo teaches the formulations contains an antifoaming agent, such as a silicon-based surfactant, in an amount of 5% or less (paragraph 0125).
Endo teaches the water-dispersible granules are an aggregate of a fine powder and a coarse powder (paragraph 0106 – 0108). Endo teaches the fine powder has a particle size distribution of 0.1 to 5 µm in approximately 50% volume-based particle size distribution, and the coarse powder has a particle size distribution of 2 to 20 µm in approximately 50% volume-based particle size distribution (paragraphs 0106 – 0108, claim 2).
Endo does not teach the agrochemical ingredient is (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide as illustrated in the structure below.
[AltContent: rect]
Roux teaches the missing element of Endo.
Roux teaches (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide as an apyrase inhibitor fungicide inhibitor (abstract). Roux teaches this compound enhances the potency of fungicides to restrict pathogenic fungal growth (paragraph 0030).
Roux teaches the combination of fungicides with apyrase inhibitors (abstract, paragraphs 0054, 0065, examples 1 – 5, claims 1, 2). Roux teaches fungicides copper octanoate, myclobutanil, and propiconazole as fungicides with apyrase inhibitor (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide (examples 1 – 5).
The combination of Endo and Roux’s teachings is prima facie obvious as combining prior art elements according to known methods to yield predictable results. Endo teaches water-dispersible granules, which are a well-known formulation of pesticides (abstract, paragraphs 0009 – 0012). Roux teaches (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide as an apyrase inhibitor fungicide inhibitor (abstract). A person of ordinary skill in the art would be motivated to modify the water-dispersible granule formulation of Endo to include the compound (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide as agrochemical ingredient because Roux teaches that this compound enhances the potency of fungicides to restrict pathogenic fungal growth (abstract, paragraph 0030). Therefore, the combination of Endo and Roux’s teachings is the combination of a known compound ((E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide) as a common formulation (water-dispersible granule) and would yield a water-dispersible granule formulation with (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide as agrochemical ingredient that functions as a fungicide enhancer. Combining prior art elements according to known methods to yield a predictable result is prima facie obvious according to MPEP 2143(i)(a).
Endo’s teaching for a water-dispersible granule formulation containing agrochemical active ingredients and a dispersion aid, which has particle sizes ranging from 0.1 to 20 µm (abstract, paragraphs 0009 – 0012, 0106 – 0108, 0123 – 0124, claim 2) in combination with Roux’s teaching for (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide as an agrochemical active ingredient (abstract) reads on instant claim 1. Endo’s teaching for particle sizes ranging from 0.1 to 20 µm (paragraphs 0106 – 0108, claim 2) overlaps on the instantly claimed range of 0.01 to 20 microns. Claimed ranges that overlap with teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Endo’s teaching that the water-dispersible granule formulation contains the agrochemical active ingredient in an amount ranging from 0.02 to 90% by mass (paragraph 0103) overlaps on the instantly claimed range of 5 to 90 wt. % as recited in claim 3. Endo’s teaching also overlaps on the claimed ranges of 30 to 85 wt. %, 30 to 40 wt. %, and 70 to 85 wt. % as recited in instant claims 6 – 8.
Endo’s teaching that the water-dispersible granule formulation contains a dispersion aid in an amount from 1 to 10% by mass (paragraph 0124) overlaps on the instantly claimed ranges of 1 to 30 wt. % and 2 to 20 wt. % as recited in claims 5 and 19, respectively.
Endo’s teaches the dispersion aid can be polyoxyethylene, polyoxypropylene, or polyoxyethylene-polyoxypropylene block copolymers, among other compounds (paragraph 0123) reads on instant claims 12 - 18.
Endo’s teaching that the water-dispersible granule formulation contains a hygroscopic water-soluble powder as a carrier in the amount of 10 to 99% by mass (paragraphs 0065, 0066) reads on instant claims 24 and 25. Endo’s taught amount of 10 to 99% by mass (paragraphs 0065, 0066) overlaps on the instantly claimed range of up to 100 wt. % as recited in claim 25.
Endo’s teaching that the water-dispersible granule formulation contains an antifoaming agent, such as a silicon-based surfactant, in an amount of 5% or less (paragraph 0125) reads on instant claims 28 - 30. Endo’s taught amount of 5% or less (paragraph 0125) overlaps on the instantly claimed range of 0.01 to 1 wt. % as recited in claim 30.
The instant claims 31 - 36 recite “wherein the particles of the first agriculturally active compound are milled prior to granulation…” The limitation that the particles are milled prior to granulation is a product-by-process limitation. Product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps according to MPEP 2113.
Even though product-by-process claims are written as defined by the process, the determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In the instant case, Endo’s teaching that the water-dispersible granules are an aggregate of a fine powder and a coarse powder, wherein the fine powder has a particle size distribution of 0.1 to 5 µm in approximately 50% volume-based particle size distribution, and the coarse powder has a particle size distribution of 2 to 20 µm in approximately 50% volume-based particle size distribution (paragraphs 0106 – 0108, claim 2) reads on the claimed water-dispersible granules with particles in the designated size range. As such, the patentability of the instant composition does not depend on its method of production, and the Applicant’s limitation regarding the process of milling the particles prior to granulation is not patentable under 35 U.S.C. 103, in view of Endo.
Briefly, Endo’s teaching that the fine powder has a particle size distribution of 0.1 to 5 µm in approximately 50% volume-based particle size distribution, and the coarse powder has a particle size distribution of 2 to 20 µm in approximately 50% volume-based particle size distribution (paragraphs 0106 – 0108, claim 2) overlaps on the claimed particle size range of 0.01 to 15 microns, 0.01 to 10 microns, less than 7 microns, 0.01 to 5 microns, 0.01 to 2 microns, and about 1 micron as recited in instant claims 31 – 36, respectively. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Endo’s teaching for a water-dispersible granule formulation containing agrochemical active ingredients in an amount ranging from 0.02 to 90% by mass and a dispersion aid in an amount ranging from 1 to 10% by mass, wherein the particle size ranges from 0.1 to 20 µm (abstract, paragraphs 0009 – 0012, 0103, 0106 – 0108, 0123 – 0124, claim 2) in combination with Roux’s teaching for (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide as an agrochemical active ingredient (abstract) reads on instant claim 37. Endo’s teaching for agrochemical active ingredient in an amount ranging from 0.02 to 90% by mass (paragraph 0103) overlaps on the instantly claimed range of 5 to 85 wt. %. Endo’s teaching for dispersion aid in an amount ranging from 1 to 10% by mass (paragraph 0124) overlaps on the instantly claimed range of 3 to 20 wt. %. Endo’s teaching for particle size ranging from 0.1 to 20 µm (paragraphs 0106 – 0108, claim 2) overlaps on the instantly claimed range below 2 microns. Claimed ranges that overlap with teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Endo’s teaching for particle size ranging from 0.1 to 20 µm (paragraphs 0106 – 0108, claim 2) overlaps on the instantly claimed about 1 micron as recited in claim 39.
Roux’s teaching to combine (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide with fungicides such as copper octanoate, myclobutanil, and propiconazole (examples 1 – 5) reads on instant claims 40 – 43 and 46 - 48.
Endo and Roux both teach water as an acceptable solvent or diluent (Endo paragraphs 0007, 0063, 0122, 0125, Roux paragraphs 0026 – 0027), reading on instant claim 44.
Roux’s example 1 teaches that the combination of myclobutanil and apyrase inhibitor (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide displays greater fungicidal inhibition than myclobutanil alone (paragraph 0056, Figure 2), in combination with Endo’s teaching that the amount of agrochemical active ingredient varies on the specific composition and desired effects, but may be in a range from 0.02 to 90% by mass (paragraph 0103) reads on instant claim 45.
Claims 2, 4, 9, 10, and 38 are rejected under 35 U.S.C. 103 as being unpatentable over Endo (as cited above) in view of Roux (as cited above) and further in view of Detroit (US 5,041,153 B1, of record).
The teachings of Endo and Roux is discussed above.
Endo and Roux do not teach the inclusion of a dust suppressant.
Detroit teaches the missing elements of the combination of Endo and Roux.
Detroit teaches an agricultural composition with anti-dusting properties (abstract).
Detroit teaches that the inclusion of lignosulfonate in a granular composition promotes anti-dusting properties (column 1 lines 65 – 67, column 7 lines 28 – 31, 34 – 38, column 8 lines 63 – 66). Detroit teaches lignosulfonate is to be included in the amount of 0.05 to 5% by weight (claim 1).
The combination of Endo, Roux, and Detroit’s teachings is prima facie obvious as combining prior art elements according to known methods to yield predictable results. A person of ordinary skill in the art would be motivated to use the water-dispersible granule formulation of Endo, featuring the compound (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide of Roux as agrochemical ingredient, with an anti-dusting agent taught by Detroit in order to mitigate dust formation. A person of ordinary skill in the art would be motivated to include Detroit’s anti-dusting agent in Endo and Roux’s formulation because dust formation can cause air pollution and respiratory harm. The combination of Endo, Roux, and Detroit’s teachings is prima facie obvious as combining prior art elements (Endo’s water-dispersible granules, Roux’s agrochemical ingredient, Detroit’s anti-dusting agent) according to known methods to yield predictable results (MPEP 2143(i)(a)).
Endo’s teaching for a water-dispersible granule formulation containing agrochemical active ingredients and a dispersion aid, which has particle sizes ranging from 0.1 to 20 µm (abstract, paragraphs 0009 – 0012, 0106 – 0108, 0123 – 0124, claim 2) in combination with Roux’s teaching for (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide as an agrochemical active ingredient (abstract), and further combined with Detroit’s teachings to include an anti-dusting agent (column 1 lines 65 – 67, column 7 lines 28 – 31, 34 – 38, column 8 lines 63 – 66) read on instant claim 2.
Detroit’s teaching for lignosulfonate (which is a surfactant) as an anti-dusting agent (column 1 lines 65 – 67, column 7 lines 28 – 31, 34 – 38, column 8 lines 63 – 66) reads on instant claims 9 and 10.
Detroit teaches lignosulfonate is to be included in the amount of 0.05 to 5% by weight, such that anti-dusting properties are increased (claim 1). Detroit’s teaching for anti-dusting agent in the amount of 0.05 to 5% by weight overlaps on the instantly claimed range of 0.5 to 15 wt. % as recited in claims 4 and 38.
Claims 20 – 23 are rejected under 35 U.S.C. 103 as being unpatentable over Endo (as cited above) in view of Roux (as cited above) and further in view of Birthisel (US 2008/0216536 A1, of record).
The teachings of Endo and Roux is discussed above.
Endo and Roux do not teach the inclusion of a binding agent.
Birthisel teaches the missing elements of the combination of Endo and Roux.
Birthisel teaches a granular composition for promoting plant growth (abstract, paragraph 0008). Birthisel teaches the granule may include conventional binders and that a binder should be chosen to produce or promote cohesion for forming the granule (paragraphs 0010, 0017).
Birthisel teaches clays, carbohydrates, proteins, lipids, synthetic polymers, or lignin, among other compounds are suitable as a binder (paragraph 0011). Birthisel teaches a binder is present in an amount ranging from 1 to 25% by weight (paragraphs 0011, 0017).
The combination of Endo, Roux, and Birthisel’s teachings is prima facie obvious as combining prior art elements according to known methods to yield predictable results. A person of ordinary skill in the art would be motivated to modify the water-dispersible granule formulation of Endo, featuring the compound (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide of Roux as agrochemical ingredient, to include a binder as taught by Birthisel because binders promote cohesion for granule formulation (paragraphs 0010, 0017). The combination of Endo, Roux, and Birthisel’s teachings is prima facie obvious as combining prior art elements to known methods to yield predictable results (MPEP 2143(i)(a)).
Endo’s teaching for a water-dispersible granule formulation containing agrochemical active ingredients and a dispersion aid, which has particle sizes ranging from 0.1 to 20 µm (abstract, paragraphs 0009 – 0012, 0106 – 0108, 0123 – 0124, claim 2) in combination with Roux’s teaching for (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide as an agrochemical active ingredient (abstract), and further combined with Birthisel’s teachings to include a binder (paragraphs 0010, 0017) read on instant claim 20. A person of ordinary skill in the art would be motivated to include a binder as taught by Birthisel because Birthisel teaches that binders promote cohesion for granule formulation (paragraphs 0010, 0017).
Birthisel’s teaching to include a binder in an amount ranging from 1 to 25% by weight (paragraphs 0011, 0017) overlaps on the instantly claimed range of 5 to 30 wt. % and 10 to 25 wt. % as recited in claims 21 and 22. Claimed ranges that overlap with teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Birthisel’s teaching that the binder may be a clays carbohydrate, protein, lipid, synthetic polymer, or lignin (paragraph 0011) reads on instant claim 23, because any one of these compounds would be expected to have a melting point greater than 100 degrees C and be readily soluble in water.
Claims 26 and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Endo (as cited above) in view of Roux (as cited above) and further in view of Suzuki (US 2003/0036481 A1, of record).
The teachings of Endo and Roux is discussed above.
Endo and Roux do not teach that the inert carrier or diluent is a mineral material.
Suzuki teaches the missing elements of the combination of Endo and Roux.
Suzuki teaches a water-dispersible granule formulation which includes an active ingredient (abstract).
Suzuki teaches the water-dispersible granule is comprised of a fine carrier which consists of minerals (paragraph 0019). Suzuki teaches the mineral for the carrier may be diatomaceous earth, bentonite, or clay (paragraph 0034).
The combination of Endo, Roux, and Suzuki’s teachings is prima facie obvious as combining prior art elements according to known methods to yield predictable results. A person of ordinary skill in the art would be motivated to modify the water-dispersible granule formulation of Endo, featuring the compound (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide of Roux as agrochemical ingredient, to include a mineral carrier as taught by Suzuki because diatomaceous earth, bentonite, and clay are inert materials that are well-known carriers. Since the mineral carriers taught by Suzuki are well-known, using these as a carrier material in the water-dispersible granule formulation of Endo would yield predictable results. The combination of Endo, Roux, and Suzuki’s teachings is prima facie obvious as combining prior art elements to known methods to yield predictable results (MPEP 2143(i)(a)).
Endo’s teaching for a water-dispersible granule formulation containing agrochemical active ingredients and a dispersion aid, which has particle sizes ranging from 0.1 to 20 µm (abstract, paragraphs 0009 – 0012, 0106 – 0108, 0123 – 0124, claim 2) in combination with Roux’s teaching for (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide as an agrochemical active ingredient (abstract), and further combined with Suzuki’s teachings to include a mineral carrier (paragraphs 0019, 34) read on instant claims 26 and 27. A person of ordinary skill in the art would be motivated to use the mineral carriers as taught by Suzuki in the water-dispersible granule formulation of Endo because the mineral carriers are well-known and inclusion of these well-known compounds would yield predictable results.
Claims 49 – 59 are rejected under 35 U.S.C. 103 as being unpatentable over Endo (as cited above) in view of Roux (as cited above) and further in view of Sharma (US 2022/0264884 A1, of record).
The teachings of Endo and Roux is discussed above.
Endo and Roux do not teach a method for applying or making the composition.
Sharma teaches the missing elements of the combination of Endo and Roux.
Sharma teaches a method for protecting plants against fungal diseases by applying a water-dispersible granular formulation (abstract).
Sharma teaches that granular formulations have several advantages, including easy handling and use, reduced toxicity and dust hazards, and convenient delivery of pesticides (paragraph 0017).
Sharma teaches that water-dispersible granules are combined with various carriers (paragraphs 0203). Sharma teaches the carriers may include dispersing agents, stabilizers, antifoaming agents, pH modifiers, surfactants, or other fillers (paragraph 0205). Sharma teaches that water-dispersible granules mixed with water disperse rapidly and have good suspensibility (paragraph 0196, 0217, 0222).
Sharma teaches a method for controlling fungi at a locus by applying a fungicidal composition in the vicinity of desired crop plants where the fungal infestation has occurred or is expected to occur (paragraphs 0039, 0040, 0053, 0060, 0206 – 0208, 0223).
The combination of Endo, Roux, and Sharma’s teachings is prima facie obvious as combining prior art elements according to known methods to yield predictable results. A person of ordinary skill in the art would be motivated to use the water-dispersible granule formulation of Endo, featuring the compound (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide of Roux as agrochemical ingredient according to the method taught by Sharma because Sharma teaches that granular formulations are easy handling and use, have reduced toxicity and dust hazards, and are convenient for pesticide delivery (paragraph 0017). The combination of Endo, Roux, and Sharma’s teachings is prima facie obvious as combining prior art elements (Endo’s water-dispersible granules, Roux’s agrochemical ingredient) according to known methods (Sharma’s method for applying granular pesticides) to yield predictable results (MPEP 2143(i)(a)).
Endo’s teaching for a water-dispersible granule formulation containing agrochemical active ingredients and a dispersion aid, which has particle sizes ranging from 0.1 to 20 µm (abstract, paragraphs 0009 – 0012, 0106 – 0108, 0123 – 0124, claim 2) in combination with Roux’s teaching for (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide as an agrochemical active ingredient (abstract), and further in view of Sharma’s teachings for a method to controlling fungi at a locus by applying a fungicidal composition in the vicinity of desired crop plants where the fungal infestation has occurred or is expected to occur (paragraphs 0039, 0040, 0053, 0060, 0206 – 0208, 0223) reads on instant claims 49 and 50.
Sharma’s teaching that water-dispersible granules mixed with water disperse rapidly and have good suspensibility (paragraph 0196, 0217, 0222) and teaching to apply the composition to treat a fungal infestation (paragraphs 0039, 0040, 0053, 0060, 0206 – 0208, 0233) reads on instant claim 51.
Roux’s teaching to combine (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide with fungicides such as copper octanoate, myclobutanil, and propiconazole (examples 1 – 5) in combination with Sharma’s teaching to apply a fungicidal composition to treat a fungal infestation reads on instant claim 52.
Sharma’s teaching to apply a fungicidal composition to treat a fungal infestation in combination with Roux’s teaching that the combination of myclobutanil and apyrase inhibitor (E)-3-methyl-N-(1-(naphthalene-2-yl)ethylidene)-benzohydrazide displays greater fungicidal inhibition than myclobutanil alone (paragraph 0056, Figure 2) reads on instant claims 53, 54, and 57 - 59.
Sharma’s teaching to apply a fungicidal composition to treat a fungal infestation in combination with Endo’s teaching that the water-dispersible granule formulation contains the agrochemical active ingredient in an amount ranging from 0.02 to 90% by mass (paragraph 0103) reads on instant claim 55.
Sharma’s teaching that water-dispersible granules are combined with various carriers including dispersing agents, stabilizers, antifoaming agents, pH modifiers, surfactants, or other fillers (paragraphs 0203, 0205) reads on instant claim 56.
Examiner’s Reply to Attorney Arguments Dated April 17, 2026
Applicant argues against Endo and Roux references individually: stating that Endo does not teach water dispersible granules containing the claimed compound (Remarks page 15) and that Roux does not teach the claimed particle size (Remarks page 15). While these assertions are technically correct, this argument is not persuasive because the rejection of claims 1, 3, 5 – 8, 12 – 19, 24, 25, 28 – 37, and 39 – 48 is over Endo in view of Roux, i.e. the combination of the two references. With regards to Applicant’s arguments against Endo and Roux individually, one cannot show non-obviousness by attacking references individually where the rejections are based on combinations of references. See MPEP 2145(iv).
Applicant argues that Endo does not demonstrate any effect based on the particle size of the active ingredient and appears to allege unexpected results (Remarks pages 15 – 16). (Although this argument is against the teachings of Endo individually, and one cannot show non-obviousness by attacking references individually where the rejections are based on combinations of references according MPEP 2145(iv) the Examiner will address it for the sake of compact prosecution.)
As an initial matter, the Examiner notes that a proper side-by-side comparison to the closest prior art as required by MPEP 716.02(e) does not appear to have been made. Applicant states that example 4 of the instant specification shows that “particles with a size of 1 micron provide greater synergy than particles of 7 microns, which provide greater synergy than particles of 15 microns” (Remarks page 16). The Examiner disagrees with this conclusion because Applicant’s results on page 30 do not appear to consistently illustrate that synergy was greater for particles of 1 micron than of the larger sizes. For ease of viewing, Applicant’s results for Experiment 4 with particle sizes and synergy have been reproduced below. Dashes represent cases where no synergy was observed.
Synergy for Zymoseptoria tritici with Amistar
Synergy for Zymoseptoria tritici with Imtrex
Synergy for Zymoseptoria tritici with Proline
Synergy for Zymoseptoria tritici with Balaya
A1
--
28%
26%
51%
B7
--
28%
25%
40%
C15
--
4.6%
61%
36%
Synergy for Phakopsora pachyrhizi with Amistar
Synergy for Phakopsora pachyrhizi with Imtrex
Synergy for Phakopsora pachyrhizi with Proline
Synergy for Phakopsora pachyrhizi with Balaya
A1
30%
--
--
40%
B7
--
--
--
33%
C15
--
--
--
20%
Synergy for Puccinia triticina with Amistar
Synergy for Puccinia triticina with Imtrex
Synergy for Puccinia triticina with Proline
Synergy for Puccinia triticina with Balaya
A1
--
29%
--
--
B7
--
3%
--
--
C15
--
--
--
--
Synergy for Botrytis cinerea with Amistar
Synergy for Botrytis cinerea with Imtrex
Synergy for Botrytis cinerea with Proline
Synergy for Botrytis cinerea with Balaya
A1
--
18%
33%
--
B7
--
6%
14%
--
C15
--
--
10%
--
The Examiner disagrees that a conclusion that smaller particle size leads to greater synergy because only 7 of the 16 cases above appear to adhere to this trend (Z.t. with Imtrex, Z.t. with Balaya, P.p. with Amistar, P.p. with Balaya, P.t. with Imtrex, B.c. with Imtrex, and B.c. with Proline). There is no consistency across fungal species or active ingredients. As such, it is not clear to the Examiner how Applicant’s argument is supported by the proffered evidence. See MPEP 716.01(c)(II) and 716.02(b)(II).
Finally, and purely arguendo, even if Applicant has in fact shown unexpected results (of which the Examiner is not persuaded at this time), the Examiner notes that Applicant’s alleged showing is in regards particle size for particles that were not water-dispersible granules (page 30) which does not appear to be “reasonably representative” of the claims in their current scope. See MPEP 716.02(d).
Applicant presents and incomplete argument against the rejection of claims 2, 4, 9, 10, and 38 over Endo in view of Roux and further in view of Detroit (Remarks page 16). Applicant argues that the rejection of claims 20 – 23 over Endo in view of Roux and further in view of Birthisel does not teach the features of claim 1 (Remarks page 16). Applicant argues that the rejection of claims 26 and 27 over Endo in view of Roux and further in view of Suzuki does not teach the features of claim 1 (Remarks page 17). Applicant argues that the rejection of claims 49 – 59 over Endo in view of Roux and further in view of Sharma does not teach the features of claim 1 (Remarks page 17). The Examiner disagrees, because as discussed in the body of the rejection above, the combination of Endo in view of Roux teaches each of the elements of instant claims 1, 3, 5 – 8, 12 – 19, 24, 25, 28 – 37, and 39 – 48; the combination of Endo in view of Roux and further in view of Detroit teaches the elements of claims 2, 4, 9, 10, and 38; the combination of Endo in view of Roux and further in view of Birthisel teaches the elements of claims 20 – 23; the combination of Endo in view of Roux and further in view of Suzuki teaches the elements of claims 26 and 27; and the combination of Endo in view of Roux and further in view of Sharma teaches the elements of claims 49 – 59.
For the reasons discussed above, the 35 U.S.C. 103 rejections are maintained.
Conclusion
THIS ACTION IS MADE FINAL. 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 Toriana N. Vigil whose telephone number is (571)270-7549. The examiner can normally be reached Monday - Friday 9:00 a.m. - 5:00 p.m. EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana Kaup can be reached at 571-272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TORIANA N. VIGIL/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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