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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on June 24, 2026 has been entered.
Summary
Claims 1-6, 8-9, 13-14, and 16-24 are pending in this office action. Claims 23-24 are new. Claims 7, 10-12, and 15 are cancelled. All pending claims are under examination in this application.
Priority
The current application was filed on August 23, 2023 is a 371 of PCT/EP2022/054531 filed February 23, 2022. The current application claims foreign priority to EP21160052.3 filed on March 1, 2021.
Information Disclosure Statement
Receipt of the Information Disclosure Statement filed on June 24, 2026 is acknowledged. A signed copy of the document is attached this office action.
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 non-obviousness.
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 1-6, 8-9, 13-14, 16-18, and 20-24 are rejected under 35 U.S.C. 103 as being unpatentable over Schlatter et al. (WO2006/024333A2) in view of Maiorella et al. (WO91/00341A1), Heath (WO2018/206253A1), and Ishibashi et al. (US2018/0139956A1).
[The Examiner is going to introduce each reference and then combine them where appropriate to reject the instant claims.]
1. Schlatter et al.
Schlatter et al. is considered the closest prior art as it teaches aqueous neonicotinoid compositions for seed treatment (see title). Furthermore, Schlatter et al. disclose an aqueous composition suitable for applying insecticides or acaricides to plant propagation materials comprising water, an insecticidally or acaricidally effective amount of at least one nitroimino- or nitroguanidino-compound in free form or in agrochemical useful salt form and a blend of the following components, by weight: a) 2 - 10% of a surface-active agent comprising a) at least one anionic surfactant; b) 4 - 20% of at least one inorganic solid carrier; and c) 3 - 25% of at least one antifreeze agent. In one embodiment, the aqueous composition further comprises a fungicidally effective amount of at least one fungicidally active compound. The inventive composition is storage stable, ready-to-apply (RTA), ecologically and toxicologically favorable and has
good fungicidal efficacy (see abstract).
2. Maiorella et al.
Maiorella et al. teach sparged insect cell culture and the expression of recombinant proteins therein (see title). In addition, Maiorella et al. disclose methods of growing insect cells in sparged culture, particularly in airlift fermentors to high cell densities with high viability are herein disclosed. Further disclosed are media in which to grow airlift insect cell culture which media comprise a non-toxic protective agent, preferably a non-toxic water-soluble polymer, and operating parameters, such as sparging rates and bubble sizes, that act to minimize cell damage and cell death from sparging. Further, the invention provides for methods and media for growing insect cells at large scale, for the production of wild type or recombinant viruses; for supporting the production therefrom of recombinant products, such as CSF-1 and IL-6, when the cells are infected by recombinant viruses; and for supporting the production therefrom of viral products, when the cells are infected with wild type viruses (see abstract).
3. Heath
Heath teaches pesticide compositions (see title). Additionally, Heath discloses a composition for treating seeds that includes talc and propylene glycol to reduce drying times of the composition once applied to the seed (see abstract).
4. Ishibashi et al.
Ishibashi et al. teach microcapsule suspension (see title). Also, Ishibashi et al. disclose that the present invention relates to a microcapsule suspension
containing (1) an oil core compound having a pesticide active agent dispersed in an oil compound, (2) an aqueous solution containing a polycationic colloid and a polyanionic
colloid in a ratio that the polycationic colloid is from 0.02 to 1 % by weight and the polyanionic colloid is from 0.02 to 2% by weight, and (3) a pH adjuster (see abstract).
Combination of Schlatter et al., Paternak et al., and Heath
Regarding instant claim 1, Schlatter et al., Paternak et al., and Heath teach a pesticidal composition. The necessary citations of Schlatter et al., Paternak et al., and Heath that pertain to instant claim 1 are presented in Table I.
Table I
Instant Claim 1
Schlatter et al., Paternak et al., and Heath Citations
A pesticidal composition comprising: (a) a compound of formula (I) at an amount from 40% to 60% by weight, with respect to the total weight of the composition:
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or an agrochemically acceptable salt, stereoisomer, enantiomer, tautomer or N-oxide thereof;
(b) water at an amount from 30% to 50% by weight, with respect to the total weight of the composition; and
(c) a surfactant system at an amount from 4% to 10% by weight, with respect to the total weight of the composition, comprising: at least one block copolymer of ethylene oxide and propylene oxide of formula (II):
HO-(CH2CH2O)x-(CH(CH3)CH2O)y-(CH2CH2O)x’-H (II) wherein x and x', equal to or different from each other, are integers from 70 to 120, and y is an integer from 20 to 45, and wherein the polyoxyethylene:polyoxypropylene chain length ratio is from 4:1 to 7:1, and
Schlatter et al. disclose aqueous compositions comprising thiamethoxam [see claim 1 within Schlatter et al.; compound of formula (I)] and further components which can be a lignin sulfonate; Reax™ (see page 10, surface active agent within Schlatter et al.), Pluronic (see page 13, additional components within Schlatter et al.), a clay (see page 12, inorganic carrier within Schlatter et al.) and a thickener (see page 14, optional ingredient within Schlatter et al.) such as guar gum, locust bean gum, xanthan gum, carrageenan, alginate salt, casein, dextran, pectin or agar (see page 14, lines 11-12 within Schlatter et al.). These compositions which can comprise additional pesticides are used against insects and a variety of other pests (see page 16, Use within Schlatter et al.); Example 1 discloses a mixture comprising Pluronic, Reax™, and a xanthan gum which should be mixed with the active agent, which is one compound selected from thiamethoxam, imidacloprid, thiacloprid, nitenpyram and acetamiprid (see Example 1 within Schlatter et al.).
Furthermore, Schlatter et al. disclose that the term insecticide or insecticidally when used herein in connection with neonicotinoid compounds is intended to include or refer to both insecticidally and acaricidally active compounds (see page 4, lines 18-20 within Schlatter et al.). The insecticidally or acaracidally active compound or compound mixture is present in the composition in an amount of from about 0.5 % to about 50% by weight (see page 7, lines 12-14 within Schlatter et al.).
Schlatter et al. disclose water is present within Table IV (combination of thiamethoxam with fungicides) for Example 11 at 34.1% by weight (see page 27 within Schlatter et al.).
Schlatter et al. disclose 2 - 10% of at least one surface-active agent, comprising at least one anionic surfactant (see claim 1 within Schlatter et al.).
All of these w/w values are overlapping with the instant claim 1 limitations.
Schlatter et al. does not disclose the correct block copolymer (Pluronic).
However, Maiorella et al. is within the pesticide arts comprising thiamethoxam (see page 3, lines 6-18 and page 6, line 17 both within Maiorella et al.) and allows for the formulation to include a non-toxic water-soluble polymer such as Pluronic® F68 and F88 (see claim 5 and see page 4, lines 17-28 within Maiorella et al.). Also, Maiorella et al. disclose both Pluronic® F68 and F88 having the correct x and x’ (76/29 and 103/39 respectively) (see PTO-892 NPL U and V; NF) (see page 4, line 25 within Maiorella et al.). Furthermore, these block copolymers of ethylene oxide and propylene oxide of formula (II) both have the appropriate chain length ratios of polyoxyethylene:polyoxy-propylene at ~5.2.
At least one alkoxylated lignosulfonate salt of formula (III):
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(III) wherein R2 and R3, equal to or different from each other, are independently selected from - CH2CH2-, - CH(CH3)CH2- and -CH2CH2CH2CH2-, i, j and k, equal to or different from each other, are 0 or integers from 1 to 15, with the proviso that at least one of i, j and k is different from 0, and X is sodium or potassium,
Schlatter et al. disclose the use of Reax 825™ an ethoxylated lignin sulfonate (see page 10, line 30 within Schlater et al.) which does not match the desired substitiuents.
However, Heath discloses use of Reax 1425e™ a lignin sulfonate ethoxylate which matches the claim limitation of instant claim 1 (see paragraph [0030] within Heath).
(d) at least one clay at an amount from 0.08% to 1.2% by weight, with respect to the total weight of the composition and (e) at least one heteropolysaccharide at an amount from 0.06% to 0.15% by weight, with respect to the total weight of the composition.
Schlatter et al. disclose the use of attapulgite-clay, that can be used both as an inorganic carrier (see page 12, lines 1-11 within Schlatter et al.) and as a thickener at a level of about 0.01 to about 25% w/w (see page 14, lines 17-20 within Schlatter et al.).
Schlatter et al. disclose the heteropolysaccharides pectin, guar gum, alginate salt, agar, and xanthan gum as thickeners comprising about 0.01 to about 25% w/w (see page 14, lines 7-15 within Schlatter et al.).
Again, all of these w/w values are overlapping with the instant claim 1 limitations.
Therefore, a skilled artisan (POSITA; person having ordinary skill in the art) would combine the Schlatter et al., Maiorella et al., and the Heath references under routine experimental conditions to afford the pesticide formulation of the present application. All references are within the pesticide arts and are thus analogous art.
Therefore, a skilled artisan (POSITA) would use the Schlatter et al., Maiorella et al., and the Heath references to teach every element of instant claim 1.
The remaining instant claims within this 35 U.S.C. § 103 section are directly or indirectly dependent on instant claim 1 and are taught in full by the combination of Schlatter et al., Maiorella et al., and Heath.
Regarding instant claims 2-4, Schlatter et al., Maiorella et al., and Heath teach wherein in the block copolymer of ethylene oxide and propylene oxide of formula (II) x and x', equal to or different from each other, are integers from 75 to 85, and is an integer from 25 to 35, and wherein the polyoxyethylene:polyoxypropylene chain length ratio is from 5:1 to 6:1.
Please see the discussion and citations within instant claim 1 (Table I). Maiorella et al. disclose both Pluronic® F68 having the correct x and x’ (76/29) (see PTO-892 NPL U; NF). Furthermore, this block copolymer of ethylene oxide and propylene oxide of formula (II) has the appropriate chain length ratios of polyoxyethylene:polyoxy-propylene at ~5.2.
Regarding instant claim 5, Schlatter et al., Maiorella et al., and Heath teach wherein in the alkoxylated lignosulfonate salt of formula (III) when any of R2 and R3 is -CH2CH2, i, j and k, equal to or different from each other, are integers from 1 to 12, preferably from 1 to 4, more preferably from 1 to 3. Heath discloses use of Reax 1425e™, a lignin sulfonate ethoxylate, which matches the claim limitation of instant claim 5 (see paragraph [0030] within Heath).
Regarding instant claim 6, Schlatter et al., Maiorella et al., and Heath teach wherein the surfactant system comprises: from 35% to 40% by weight, with respect to the total weight of the surfactant system, of at least one polyoxyethylene-polyoxypropylene block copolymer of formula (II); and from 60% to 65% by weight, with respect to the total weight of the surfactant system, of at least one alkoxylated lignosulfonate salt of formula (III).
Schlatter et al. disclose a surface-active agent system (see page 10, surface active agent, within Schlatter et al.). Furthermore, Schlatter et al. disclose that the aqueous compositions contain at least about 2% up to about 10% by weight of a surface-active agent comprising at least one anionic surfactant (see page 10 lines 2-6 within Schlatter et al.). This includes an ethoxylated lignin sulfonate, Reax 825™(see page 10 line 30 within Schlatter et al.).
Additionally, Schlatter et al. disclose that the aqueous compositions generally contain from about 0% to about 10% by weight of the composition of polymer (d) (see page 13, additional components, lines 5-6 within Schlatter et al.). Specific examples of suitable polymers include Pluronic® P103 (BASF) (EO-PO-EO block copolymer), Pluronic® P65 (BASF) (EO-PO-EO block copolymer), Pluronic® P108 (BASF)(EO-PO-EO block copolymer)…” (see page 13, lines 29-31 within Schlatter et al.).
Therefore, the ratio of 3.5-4% block copolymer divided by 6-6.5% surface-active agent will afford the instant claim 6 limitation.
Regarding instant claims 8-9, Schlatter et al., Maiorella et al., and Heath teach said composition further comprising: (d) at least one clay; and (e) at least one heteropolysaccharide. Schlatter et al. disclose inorganic solid carrier at a level of about 4 and up to about 20% of which can include clay (see page 12, lines 2-11 within Schlatter et al.). Instead of an inorganic carrier, the attapulgite-clay can also act as a thickener (see the discussion within instant claim 1). In addition, Schlatter et al. disclose the use of a heteropolysaccharide such as xantham gum as a thickener in an amount from about 0.01% to about 25% w/w (see page 14, lines 5-12 within Schlatter et al.).
Thus, this can afford a ratio of clay (4-20%) divided by heteropolysaccharide 0.01-25%) of 9:1 to 10:1 (for example, 20% clay / 2% heteropolysaccharide = 10:1). [Alternatively, if the attapulgite-clay is categorized as a thickener and a skilled artisan uses the instant claim 1 limitations we can arrive at a 10:1 ratio (for example, 1.2% clay / 0.11% heteropolysaccharide = 10:1).]
Regarding instant claim 14, Schlatter et al., Maiorella et al., and Heath teach wherein the plant is selected from the group consisting of cereals, vegetables, field crops, oil seed crops, forage crops and fiber crops. Schlatter et al. disclose “a method wherein said plant propagation material is a plant seed selected from potatoes, wheat, barley, rye, oats, rice, maize, sugar beet, cotton, sorghum, sun flowers, beans, peas, canola, rape, soybeans, cabbages, tomatoes, eggplants and pepper.” (see claim 17 within Schlatter et al.).
Regarding instant claim 15, Schlatter et al., Maiorella et al., and Heath teach the use of the pesticidal composition as an insecticide, acaracide, nematicide or molluscicide. Please see the discussion and citation within instant claim 13 (insecticide).
Regarding instant claim 16, Schlatter et al., Maiorella et al., and Heath teach the pesticidal composition comprising (a1) through (d1). Please see the citations and discussion within instant claim 1 for the necessary rejection text.
Regarding instant claim 17, Schlatter et al., Maiorella et al., and Heath teach the pesticidal composition comprising (a1) through (d1). Please see the citations and discussion within instant claim 1 for the necessary rejection text. Additionally, the ethoxylated lignin sulfonate variant disclosed by Schlatter et al. classify as a surfactant and are used from 2 - 10% w/w (see claim 1 within Schlatter et al.). The block copolymer variant also disclosed by Schlatter et al. is classified as a film-forming polymer and the compositions contain from about 1.0% up to about 5% by weight (see page 13 within Schlatter et al.). The Smectite clay of (d1) would not be added to the composition.
Regarding instant claims 18 and 20, Schlatter et al., Maiorella et al., and Heath teach the pesticidal composition comprising (a1) through (d1). Please see the citations and discussion within instant claims 1 and 17 for the necessary rejection text.
Regarding instant claims 23 and 24, Schlatter et al., Maiorella et al., and Heath teach wherein the composition is an aqueous flowable concentrate for seed treatment.
Schlatter et al. disclose that the present invention relates to aqueous compositions, to the preparation of such compositions and to a method of using such compositions for controlling insects and/or representatives of the order Acarina. The aqueous compositions of the invention have particular application in the protection of plant propagation materials, such as seeds, against insects and/or representatives of the order Acarina (see page 1, lines 4-8 within Schlatter et al.).
Combination of Schlatter et al., Maiorella et al., Heath, and Ishibashi et al.
Regarding instant claim 13, Schlatter et al., Maiorella et al., Heath, and Ishibashi et al. teach a method of controlling insects, acarines, nematodes or molluscs in field crops which comprises applying an insecticidally, acaricidally, nematicidally or molluscicidally effective amount between 1 to 2000 l/ha of the pesticidal composition according to instant claim 1 to a pest, a locus of pest, to a plant susceptible to attack by a pest or to plant a propagation material thereof. Schlatter et al. disclose “a method of protecting plant propagation material against attack by insects and phytopathogenic fungi which comprises treating said plant propagation material with a pesticidally effective amount of a composition…” (see claim 16 within Schlatter et al.). Furthermore, Ishibashi et al. disclose an application level of 30 g/ha (see Example 3, Table 2 within Ishibashi et al.).
Regarding instant claim 21, Schlatter et al., Maiorella et al., Heath, and Ishibashi et al. teach a method of controlling insects, acarines, nematodes or molluscs in field crops, which comprises applying an insecticidally, acaricidally, nematicidally or molluscicidally effective amount between 1 to 2000 l/ha of the pesticidal composition according to instant claim 16 to a pest, a locus of pest, to a plant susceptible to attack by a pest or to plant a propagation material thereof. Please see the citations and discussion within instant claim 13 and 16 for the necessary rejection text.
Regarding instant claim 22, Schlatter et al., Maiorella et al., Heath, and Ishibashi et al. teach wherein the plant is selected from the group consisting of cereals, vegetables, field crops, oil seed crops, forage crops and fiber crops. Ishibashi et al. disclose where tomato plants were subjected to application of the pesticide (see Example 4 within Ishibashi et al.).
Analogous Art
The Schlatter et al., Maiorella et al., Heath, and Ishibashi et al. references are directed to the same field of endeavor as the instant claims, that is, a pesticidal composition.
Obviousness
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 modify the pesticidal composition disclosed by Schlatter et al., using the teachings of Maiorella et al., Heath, and Ishibashi et al. to incorporate the necessary claim limitations. Starting with Schlatter et al., the skilled person only had to try the necessary claim limitations disclosed Maiorella et al., Heath, and Ishibashi et al. The combination of Schlatter et al., Maiorella et al., Heath, and Ishibashi et al. would allow one to arrive at the present application without employing inventive skill. This combination of the pesticidal composition taught by Schlatter et al. along with the use of the necessary claim limitations taught by Maiorella et al., Heath, and Ishibashi et al. would allow a research and development scientist (POSITA) to develop the invention taught in the instant application. It would have only required routine experimentation to modify the pesticidal composition disclosed by Schlatter et al. with the use of the necessary claim limitations taught by Maiorella et al., Heath, and Ishibashi et al. This combined modification would have led to an enhanced pesticidal formulation that would be beneficial for consumers.
In the context of instant method claims 13-14 and 21-22 the desired purpose defines an effect that arises from and is implicit in the method step(s). Thus, where the purpose is limited to stating a technical effect that inevitably occurs during the performance of the claimed method step(s), and is therefore inherent in that/those step(s), that technical effect is not limiting to the subject-matter of the claim. Thus, the present method claim, defining the application/use of the composition according to the prior art, and defining its purpose as "use", is anticipated by any document of the state of the art describing a method of application/use although not mentioning this specific use.
Allowable Subject Matter
Claim 19 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The subject matter of claims 19 is allowable because the inorganic carrier smectite clay within (d1) is not taught at the low (<2% w/w) weight percent for the overall composition. For example, a majority of the relevant prior art teaches 4%-20% w/w. Motivation is lacking to add these two claim limitations to the closest prior art or Schlatter et al.
Response to Arguments
Applicant's arguments filed June 24, 2026 have been fully considered but they are not persuasive.
The Applicant’s claim amendments were sufficient to address the claim objections. Therefore, the claim objections from the Final Rejection dated March 24, 2026 are withdrawn from the record.
The Applicant’s claim amendments did necessitate a new ground of rejection.
The Examiner thanks the Applicant for their discussion of Pluronic® F-68 within the Remarks Section.
Applicant Argument: The Applicant argues that the Pasternak et al. reference does not include Pluronic® F68 of F88 in any pesticidal formulations.
Examiner’s Rebuttal: The argument is now moot. The Examiner has withdrawn the Pasternak et al. reference from the record and replaced it with the Maiorella et al. reference.
Maiorella et al. is within the pesticide arts comprising thiamethoxam (see page 3, lines 6-18 and page 6, line 17 both within Maiorella et al.) and allows for the pesticidal formulation to include a non-toxic water-soluble polymer such as Pluronic® F68 and F88 (see claim 5 and see page 4, lines 17-28 within Maiorella et al.). Also, Maiorella et al. disclose both Pluronic® F68 and F88 having the correct x and x’ (76/29 and 103/39 respectively) (see PTO-892 NPL U and V; NF) (see page 4, line 25 within Maiorella et al.). Furthermore, these block copolymers of ethylene oxide and propylene oxide of formula (II) both have the appropriate chain length ratios of polyoxyethylene:polyoxy-propylene at ~5.2 to meet all the instant claim 1 limitations.
Applicant Argument: The Applicant argues that the unexpected results within the specification (Table 1) show improved stability over the prior art comparative examples, and therefore support patentability.
Examiner’s Rebuttal: As a reader and evaluator of inventions it is necessary to be critical of them. The Examiner realizes that there is no requirement for experimental data of unexpected results to be confirmed by analytical instrumentation. By assigning values of 1 to 5 the Examiner was merely pointing out that the assignment is subjective. If you select ten different scientists and ask them to assign a value of 1 to 5, then you may end up with a variety of answers. Whereas analytical instrumentation is unambiguous.
Evidence of unexpected results must be weighed against evidence supporting prima facie obviousness in making a final determination of the obviousness of the claimed invention. In re May, 574 F.2d 1082, 197 USPQ 601 (CCPA 1978) (Claims directed to a method of effecting analgesia without producing physical dependence by administering the levo isomer of a compound having a certain chemical structure were rejected as obvious over the prior art. Evidence that the compound was unexpectedly nonaddictive was sufficient to overcome the obviousness rejection. Although the compound also had the expected result of potent analgesia, there was evidence of record showing that the goal of research in this area was to produce an analgesic compound which was nonaddictive, enhancing the evidentiary value of the showing of nonaddictiveness as an indicium of nonobviousness.). [see M.P.E.P. 716.02(c)]. In this instance, the prior art of record is stronger than the unexpected results.
The Examiner believes that a skilled artisan (POSITA) would discover the same unexpected results using the prior art of record.
Therefore, the 35 U.S.C. §103 rejection is maintained for instant claims 1-6, 8-9, 13-14, 16-18, and 20-24.
Conclusion
No claims are allowed.
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/JOHN W LIPPERT III/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
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