DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after October 24, 2023, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt is acknowledged of Applicants’ claimed invention filed on 10/24/2023 in the matter of Application N° 18/493,195. Said documents are entered on the record. The Examiner further acknowledges the following:
Thus, claims 1-18 represent all claims currently under consideration.
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.
Claims 1-18 are rejected under 35 U.S.C. 103 as being unpatentable over Burnet et al. (WO2015059580A1), in view of Hsu et al. (US10723664B1), Lenyuk et al. (SU1341306A1), Xiaomei et al. (CN107629428A) and Guoqing et al (CN106172388A), Baocheng (CN107006519A)
Regarding claims 1, 2, 3, 4, 7, 10, and 11, Burnet et al. disclose a composition in the form of slow-releasing granules with or without sub-particles. The granules may contain sub-components that are disseminated by the granule after it disintegrates, to limit the availability of the pesticide (See abstract, claim 1, and page 2, lines 11-13). Cellulose can serve as the basis for the granule forming matrix (See page 7, lines 23-26), while calcium carbonate is frequently added as a filler (See page 23, lines 18-20, and page 24, lines 4-5). Fosetyl aluminum is recommended as a potential fungicide and pesticide to be utilized with the granules (See page 13, line 4). The concentration of at least one pesticide in the composition is around 0.01% to roughly 75% (See page 14, lines 10-11). A typical carrier is a Biodac® (See page 22, line 18) cellulose derivatives can also be utilized as binders (See page 8, line 30). The composition discloses a metal, such as calcium oxide or calcium carbonate (See page 7, line 29, and page 23, line 18, and page 55, line 12).
Regarding claims 6, 8, and 9, which is distinct from Burnet et al. in that the amount of metal is less than 1% in that no phosphite salt of monopotassium or monoammonium is comprised, nor a diammonium or dipotassium phosphite. A delayed release results from this kind of phosphite formulation. The effect has been studied using paper stripes or cellulose Biodac®, both with and without calcium carbonate. Monoammonium or monopotassium salts have the slowest release. A small amount of the diammonium/dipotassium salt can also be used to adjust the speed. Both soil and laboratory testing have been used to test the effect. Fungicidal activity has been evaluated against phytophthora in potato. Given the referenced prior art documents, the phosphite salt release kinetics are not thought to be evident.
However, Burnet et al. do not disclose wherein an active agent selected from the group consisting of phosphorous acid and phosphite salts that contain the monovalent anion.
Hsu et al. disclose a stable metal phosphite composition with four to eight parts water. Phosphorous acid: 1-3 parts. 0.5-1.5 parts copper sulfate and an adequate amount of liquid ammonium hydroxide, where the molar ratio of ammonium copper is 1-4 moles ammonium to 1 mole copper; this composition is useful for foliar application or seed treatment, offering both fungicidal protection and nutritional benefits (See abstract and claims 1 and 3).
It would have been obvious to one of ordinary skill in the art before the instant effective filing date to use the carrier of Burnet et. al. to apply the phosphite composition of HSU et al. with the expectation of creating a fungicidal composition that is persistent in the environment. Burnet et al. teach the advantage of slow release of agricultural compositions such as fungicides and said person of ordinary skill would be motivated to achieve the same beneficial results. other references address fungicidal phosphite delivery for plant protection, including control of phytophthora and related pathogens. A POSITA would readily view Hsu’s phosphite composition as an alternative or supplemental phosphite source useful within Burnet’s granule matrix. Hsu et al. teaches that its ammonium-copper phosphite complex provides chemical stability and dual fungicidal/nutritional activity. Incorporating such a stabilized phosphite source into Burnet’s slow-release granules would predictably enhance nutrient delivery and fungicidal performance, both outcomes expressly desirable in Burnet et al. Burnet et al. already discloses the inclusion of pesticidally active phosphite salts in granules designed to modulate release. Hsu et al. teaches a known, stable phosphite active ingredient with known plant-protective properties. Combining a known active ingredient with a known controlled-released system to achieve predictable fungicidal delivery constitutes a predictable use of prior art elements according to their established functions. (KSR Int’l v. Teleflex, 550 U.S. 398,417 (2007).
However, Hsu et al. do not disclose wherein the phosphite salt is monoammonium or monopotassium phosphite.
Regarding claims 1, 5, and 10, Lenyuk et al. discloses a technique of whitening of cellulose that contains the step of treating it with 0.01-0.25% potassium or sodium phosphite (See abstract).
Regarding claims 6, Lenyuk et al. disclose prima facie case of obviousness is established because the prior art teaches preparing phosphite salts, including monoammonium phosphite, by neutralizing phosphorous acid with an ammonium source. The selection of liquid ammonium hydroxide (NH4OH) as the ammonium source would have been an obvious choice to a person of ordinary skill in the art because NH4OH is a conventional, widely available reagent for delivering NH4+ ions in aqueous solution. Neutralization of phosphorous acid with NH4OH to form monoammonium phosphite represents nothing more than the predictable use of prior-art elements according to their established chemical functions. The reaction proceeds by proton transfer yielding the monoammonium phosphite salt (NH4H2PO3) and water, which is expected, routine outcome substituting ammonium hydroxide for other known ammonium sources, such as ammonium carbonate, ammonium bicarbonate, ammonium phosphate, or ammonium chloride would have been within the ordinary skill in the art because all such reagents provide the same NH4 cation required to form the monoammonium salt. No unexpected results are demonstrated that using ammonium hydroxide as the ammonium source yields any improved purity, stability, biological activity, or formulation advantage (See abstract and claims 1, and 3 (as required by instant claim 6).
It would have been obvious to one of ordinary skill in the art before the instant effective filing date to incorporate the teachings of Hsu’s into the preparation methods of Lenyuk et al. Lenyuk et al. establishes that neutralizing phosphorus acid with an ammonium source to form monoammonium phosphite is well known. Hsu’s use of liquid ammonium hydroxide simply reflects one of the most conventional and widely available sources of NH4+ ions in aqueous solution. Selecting NH4OH in place of other ammonium sources taught by Lenyuk (e.g. ammonium carbonate, ammonium bicarbonate, ammonium chloride, ammonium phosphate) constitutes the predictable substitution of one known reagent for another according to MPEP 2144 (substitution). All these reagents provide the same ammonium cation necessary to produce ammonium phosphite. Thus, the use of NH4OH represents “nothing more than the predictable use of prior art elements according to their established chemical functions.” For at least these reasons, it would have been obvious to one of ordinary skill in the art to incorporate the teachings of Hsu et al. into the phosphite salt preparation methods disclosed by Lenyuk et al. since both references teach compatible chemical systems, rely on predictable acid-base neutralization reactions, and seek to produce agriculturally useful phosphite compositions with improved fungicidal or nutritional activity.
However, Lenyuk et al. do not disclose a method of supplying phosphorus acid or a monovalent phosphite salt to a plant, optionally in admixture with a divalent salt of the acid.
Regarding claim 12, Xiaomei et al. disclose a film to be used in agriculture because quickly decomposable and environmentally friendly: it comprises calcium carbonate, hydroxycellulose, and phosphite stabilizer (See Abstract and claim 1).
However, Xiaomei et al. do not disclose wherein a method of protecting a plant against a fungal disease or a nematode attack.
However, Xiaomei et al. do not disclose a method of protecting a plant against a fungal disease or a nematode attack.
Regarding claim 13, Guoqing et al. disclose dispersible granules of a compound comprising trifloxystrobin and fosetyl-aluminum. Dispersant, wetting agent, disintegrant and packaging are comprised. The active represent 10 to 50% by weight. As fillers, starch or calcium carbonate might be used. Embodiment 6 teaches a composition wherein starch is the major amount and Fosetyl aluminum is 20% by weight (See Abstract, claims 1 and 2, and Embodiment 6).
Regarding claim 14, Guoqing et al. disclose a plant selected from the group comprising of Brassicaceae/Cruciferae. Brussels sprouts, kale, cabbage, broccoli, and other vegetables fall within this category. In particular, vegetables belonging to the Brassicaceae family are referred to as brassicaceous vegetables. Examples include Broccoli, kale, cabbage, Brussels sprouts, etc. (See background technology, paragraph 4).
Regarding claim 15, Guoqing et al. disclose wherein one or more organic fungicides to the plant such as Trifloxystrobin extract from natural product strobilurins, make the fungicides that the class successfully developed for antibacterial lead, has efficiently, wide spectrum, protects, treats, shovels remove, permeate, systemic activity, resistance of rain water washing against, the characteristic such as lasting period length (See background technology, paragraph 1). Guoqing et al. also disclose wherein Rhizoma Solani Tuberosi refers to the rhizome or underground stem portion of the potato plant (Solanum tuberosum), specifically the tuber or parts derived from the tuber (See background technology, paragraph 4 (as required by instant claim 16).
However, Guoqing et al. do not disclose wherein organic fungicides are applied by foliar spray.
Regarding claim 17, Baocheng teaches Bacillus amyloliquefaciens is the active component of Baocheng’s effective bactericidal composite, which also contains Bacillus amyloliquefaciens YU active component B. The present composition has increased activity to the many diseases in varied crop, and with clear synergistic effect, increases fungicidal spectrum (See abstract and claim 1). The bactericidal compound of the present invention, wherein desired agent type is wettable powder, water dispersible granules, aqueous emulsion, and aqua. The composition includes the following component and content when water dispersible granules are formed. The treasure trove of bacillus amyloliquefaciens and excess filler (See the present invention is to be achieved through the following technical solutions, paragraphs 9-11 (as required by instant claim 18).
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kimberly Barber whose telephone number is (703) 756-5302. The examiner can normally be reached on Monday through Friday from 6:30 AM to 3:30 PM EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert A. Wax, can be reached at telephone number (571) 272-0623. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from Patent Center. Status information for published applications may be obtained from Patent Center. Status information for unpublished applications is available through Patent Center for authorized users only. Should you have questions about access to Patent Center, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free).
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) Form at https://www.uspto.gov/patents/uspto-automated- interview-request-air-form. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KIMBERLY BARBER/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615