DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Claims
Amendments to the Claims and Arguments/Remarks filed 07 January 2026, in response to the Office Correspondence dated 02 October 2025, are acknowledged.
The listing of Claims filed 07 January 2026 2025, have been examined. Claims 1-11 are pending. Claims 1 and 3 are amended and are supported by the originally-filed disclosure and new claim 11 has been added.
Response to Amendment
Claim 3 has been amended to address the weight basis objection informality and claim 5 had erroneously been cited in the heading of the 35 USC § 112(b) rejection. Accordingly, all rejections under 35 USC § 112(b) are withdrawn.
The applicant has also amended claim 1, from which claims 1-10 ultimately depend to include a new limitation of 0.5-4.0 wt% of the copolymer in the agricultural formulation. The applicant has also added new claim 11.
The applicant’s arguments have been fully considered regarding the rejection under 35 U.S.C. § 103 over Norton in view of Howard, but are not sufficient to overcome the rejections. Accordingly, the 35 U.S.C. § 103 rejections for claims 1-10 are maintained.
The amendment to claim 1 render claim 2 redundant, and therefore an new objection to claim 2 has been made, as set forth below. In addition, new grounds of rejection under 35 U.S.C. § 112(b) and 35 U.S.C. § 103 are made for the newly added claim 11, as set forth below.
Maintained Rejections
The following rejections are maintained from the previous Office Correspondence dated 02 October 2025, since the art which was previously cited continues to read on the amended/newly cited limitations.
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-AlA 35 U.S.C. § 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AlA) 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 1-10 are rejected under 35 U.S.C. § 103 as being unpatentable over Norton et al. (US20140187424A1; published 2014-07-03, hereinafter referred to as “Norton”), in view of Howard et al. (EP3248465A1; published 2017-11-29, hereinafter referred to as “Howard”).
Norton teaches an agricultural formulation, comprising copolymers consisting of comprising acrylic acid or methacrylic acid monomers and alkyl acrylate or alkyl methacrylate monomers (¶[0115]) with acid monomer (e.g., acrylic or methacrylic acid) to alkyl acrylate monomer of between about 50:50 (¶[0115]), encompassing the instant claim range. Norton discloses agricultural compositions comprising pyrethrin pesticides as active ingredients have log Kow values >1.0 (known property of such actives; (¶[0100]). Thus, teaching the copolymer backbone (acid and hydrophobic acrylate monomers) and the use in pesticide formulations.
Howard teaches an agrochemical composition comprising copolymers with hydrophilic monomers (e.g., methacrylic acid, having a known log Kow of approximately 0.93) (¶[0044]) present in the range from 10 wt.% to 70 wt.% (¶[0064]), and hydrophobic monomers (e.g., butyl methacrylate, having a known log Kow range from approximately 2.26 to 3.01, with commonly reported values around 2.88) (¶[0057]), listed also as an example of an acrylic monomers are (meth)acrylic acid or salts thereof ((¶[0079]), which may range in use from 30 wt.% to 90 wt.% (¶[0077]) and the use of thus encompassing instant claim 1 range.
In addition, Howard explicitly teaches wherein, “The ratio of stabiliser polymer (I) to core polymers (II) in the emulsion polymer b) may be 50:50. More preferably, 40:60. Further preferably, 30:70. Most preferably the stabiliser will be present in the amount from 15-25 with the core being present in the amount from 85-75.” (¶[0102]), thus clearly instructing 60-70 wt.% monomeric structural units derived from core polymer (II), which may be selected as butyl methacrylate as described above, and 30-40 wt % of monomeric structural units derived from stabiliser polymer (I), which may be selected as methacrylic acid as described above.
Howard discloses use with many active ingredient substances inherently known to have a log Kow of 2.5 or greater. Herbicide active ingredients are primarily listed in paragraphs [0032] and [0033] (i.e., dicamba (acid form), 2,4-D (acid form), 2,4-DB (acid form), diflufenican, diuron, ethofumesate, fluroxypyr (acid form), flurtamone, fomesafen (acid form), glufosinate (acid form), glyphosate (acid form), isoxaflutole, MCPA (acid form), MCPB (acid form), pendimethalin, tefuryltrione), wherein use of herbicide acid or ester forms (crucial in some cases for high log Kow values) are specifically taught as, “Preferred herbicides a) are for example (always comprise all applicable forms such as acids, salts, ester, with at least one applicable form)...” (¶[0032]). Howard also teaches many fungicides inherently known to have a log Kow of 2.5 or greater, listed in paragraphs [0030] and [0031] (i.e., bixafen, fluopicolide, fluopyram, prothioconazole, tebuconazole, trifloxystrobin, azoxystrobin, boscalid, chlorothalonil, cyproconazole, difenoconazole, epoxiconazole, flutianil, penthiopyrad, pyraclostrobin, tetraconazole), and insecticides, listed in paragraphs [0028] and [0029] (i.e., chlorfenapyr, fipronil, pyridaben, spirodiclofen, spiromesifen and spirotetramat).
Howard Example 1 teaches an emulsion polymer additive present at 30 g/L (¶[0143]), which equates to approximately 3.0 wt% of the additive. Howard Table 2 teaches that the polymer dispersion has a solids content of 41.05-50.51 wt% (¶[0113]). Multiplying the additive concentration (3.0 wt%) by the solids fraction (~0.45) yields an actual copolymer solids concentration of approximately 1.35-1.5 wt%, squarely within the applicant’s claimed range. Thus, Howard expressly teaches the claimed concentration.
Howard’s stabilizer polymer (I) and core polymer (II) together form a single emulsion polymer particle having overall monomer ratios that overlap entirely with the claimed ranges. One of ordinary skill would recognize that reducing Howard’s two-polymer system to a single copolymer having the same overall monomer ratios is a routine design choice. Moreover, Norton independently teaches a single copolymer of methacrylic acid and butyl methacrylate (¶[0115]).
Howard ¶[0102] explicitly teaches a ratio of stabilizer polymer (I) to core polymer (II) of 30:70 (i.e., 30 wt% stabilizer, 70 wt% core). Howard identifies methacrylic acid as a suitable monomer for the stabilizer (¶[0044]) and butyl methacrylate as a suitable monomer for the core (¶[0057], [0079]). Thus, the claimed ratio of 60-70 wt% butyl methacrylate and 30-40 wt% methacrylic acid (claim 9) is expressly disclosed.
Thus, all of the limitations of instant claims 1, 4, and 6-9 are taught. It would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to use the copolymer ratios taught by Norton and the invention of Howard with known pesticide actives (log Kow >2.5) to arrive at instant claimed formulation, as taught to be within the working range for its standard purpose in similar compositions. While neither Norton or Howard explicitly discloses the log Kow for the monomers or pesticides, they are inherent properties of the selected monomers and pesticides, therefore the limitation is met inherently.
Regarding instant claims 2 and 10, Howard teaches agricultural copolymer formulations intended for dilution with water prior to use as, “…in the form of an emulsion and which can be diluted easily with pure water, thereby forming stable dilute emulsions for application purposes.” (¶[0013]) and “By dilution with water they can be converted into homogeneous spray liquids. These spray liquids are applied by customary methods, i.e., for example, by spraying, pouring or injecting.” (¶[0128]). In Example 1 and 2, including an active ingredient and water, the final polymer dispersion concentration is the concentration of the emulsion polymer additive (component b) in the final product, listed as 30 g/L (¶[0143] and [0146], respectively), yielding a 3.0 wt.% concentration (wt.% concentration = (mass of additive in g/total volume in mL) x 100). This calculation is for the entire polymer dispersion (additive b) in the final agrochemical formulation, in which the dispersion is not 100 wt.% copolymer. Table 2 teaches that the polymer dispersions have a solid content ranging from 41.05-50.51 wt.% (¶[0113]), therefore the actual copolymer solids in the dispersion concentration would be equal to the dispersion concentration (3.0 wt.%) multiplied by its solids content percentage (41.05-50.51 wt.%) to yield 1.23-1.52 wt.% actual copolymer solid concentration in the final formulation. Hence, Howard teaches the limitation of instant claim 2 wherein the copolymer comprises from 0.5 - 4.0 wt % total weight of the agricultural formulation and the limitations of instant claim 10 wherein an agricultural mixture is taught comprising an agricultural formulation with two copolymers and an active ingredient and water.
Regarding instant claim 3, Norton discloses agricultural compositions containing random poly(methacrylic acid-co-butylmethacrylate) polymer-associated nanoparticles of pyrethroid compounds (high log Kow) for the control of insect pests, wherein dispersants/wetting agents, including ethoxylates (e.g., ethylene glycol), are used at less than about 5 wt. % in some embodiments (¶[0010]- [0011]). It also teaches that various small-amount additives including, “In some embodiments the formulation includes between about 0.05 weight % and about 10 weight % of an anti-freezing agent. In some embodiments, the anti-freezing agent is less than about 5 weight % of the formulation. In some embodiments, the anti-freezing agent is less than about 1 weight % of the formulation. In some embodiments, the anti-freezing agent is selected from the group consisting of ethylene glycol; propylene glycol; urea and combinations thereof.” (¶[0015]). Thus, Norton directly supports auxiliary glycol component inclusion in a similar formulation at low wt.%, with a range of concentrations that includes the instant claimed 0.5-3.0 wt.%, as a matter of routine formulation practice.
Howard teaches agrochemical compositions comprising a polymer emulsion and one or more additives selected dispersing aids, rheological modifiers, other formulants and further comprising penetration promoters, wetting agents, spreading agents and/or retention agents (claims 1 and 2). Further, Howard teaches, “Suitable non-ionic surfactants or dispersing aids c) are all substances of this type which can customarily be employed in agrochemical agents. Preferably, polyethylene oxide-polypropylene oxide block copolymers, polyethylene glycol ethers of branched or linear alcohols…” (¶[0114]), in which use of non-ionic dispersants is 6.0 wt.% in Example 1 and 3.7 wt.% in Example 2, suggesting concentrations of non-ionic dispersants in formulations vary as a matter of optimization by routine experimentation and use levels exemplified are near the range of 3.0 wt.% in some embodiments.
In addition, Howard also teaches, “Suitable other formulants e) are selected from antifoams, biocides, antifreeze, colourants, pH adjusters, buffers, stabilisers, antioxidants, inert filling materials, humectants, crystal growth inhibitors, micronutirients, penetration promoters, wetting agents, spreading agents and/or retention agents…” (¶[0118]), which could reasonably include glycols or a glycol component. In fact, they are explicitly listed as such for antifreeze (¶[0120]; Example 1 and 2 list antifreeze component at 80 g/L [8 wt.%], ¶[0143] and [0146], respectively) and suitable penetration promoters, wetting agents, spreading agents and/or retention agents with polyglycol chains (i.e., including ethoxylated branched alcohols (e.g. Genapol® X-type), methyl end-capped, ethoxylated branched alcohols (e.g. Genapol® XM-type), ethoxylated coconut alcohols (e.g. Genapol® C-types), ethoxylated C12/15 alcohols (e.g. Synperonic® A-types), propoxy-ethoxylated alcohols, branched or linear, e.g. Antarox® B/848, propoxy-ethoxylated fatty acids, Me end-capped, e.g. Leofat® OC0503M, ethoxylated diacetylene-diols (e.g. Surfynol® 4xx-range), ethoxylated mono- or diesters of glycerine comprising fatty acids with 8-18 carbon atoms and an average of 10-40 EO units (e.g. Crovol® range), castor oil ethoxylates comprising an average of 5-40 EO units (e.g. Berol® range, Emulsogen® EL range), and block-copolymer of polyethylene oxide and polypropylene oxide) (¶[0124]).
Moreover, the instant specification further discloses that these additives are routine in these types of formulations as, “Agricultural formulations typically include humectants (e.g., polyethylene glycol), spreaders and stickers, rheology modifiers, rainfastness additives, nutrients and multiple other adjuvants leading to complicated formulations.” (¶[0003]). However, Howard does not explicitly disclose the use of a glycol at precisely from 0.5 wt % to 3.0 wt % in compositions of the invention.
It would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to adjust the glycol-based compounds (the ethoxylated alcohols, which are polyethylene glycol ethers) as non-ionic surfactants at specific concentrations of 6.0 wt.% and 3.7 wt.% in working examples of the invention by Howard to an effective concentration range of 0.5-3.0 wt.%, as a matter of routine experimentation in seeking to optimize the formulation for factors like cost, viscosity, or surface activity (see KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007)). A person of ordinary skill in the art seeking to adjust surfactant concentration has a predictable set of outcomes in that too little surfactant leads to poor dispersion/stability and too much can increase cost, foaming, or viscosity. Finding the optimal balance is a fundamental and routine task in formulation science, wherein Howard itself provides a starting point (3.7 wt.% and 6.0 wt.%) and identifies this parameter as variable in concentration between formulations (Example 2 versus Example 1). It would be obvious to one of ordinary skill in the art to explore concentrations around and between these known, working levels to fine-tune the formulation. The claimed range of 0.5-3.0% is a logical and predictable optimization of the prior art's teaching, encompassing a concentration (e.g., 3.0%) very close to the 3.7% already disclosed. Merely selecting a predictable new concentration range from a simple linear adjustment, without evidence of criticality or unexpected properties, is insufficient to confer patentability.
In addition, Howard lists various components, including "antifreeze (e)" as one of the "other formulants" in the agrochemical formulation, explicitly mentioning glycols (e.g., ethylene glycol, propylene glycol) as examples of suitable antifreeze agents, however the formulation concentrations used in the Example embodiments are of antifreeze at 8.0%.
Norton discloses a similar agricultural composition wherein dispersants/wetting agents, including ethylene glycol, used at less than about 5 wt. % and in some embodiments wherein from about 0.05-10 wt.% of a glycol anti-freezing agent may be used.
Thus, it would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to either add a glycol-based dispersants/wetting agent taught by Norton to the invention of Howard or to adjust the conventional use of glycol-based antifreeze agents in the formulation taught by Howard to 0.5-3.0 wt.%, as taught to be within the working range for its standard purpose in similar compositions disclosed by Norton. Selecting a concentration between 0.5-3.0 wt.% would be a matter of routine optimization through ordinary experimentation, based on the known effective amounts of glycols used for freeze protection in similar aqueous systems. In summary, the presence and approximate amount of glycols of the instant claim are within routine optimization of the cited references and constitute predictable use.
Regarding instant claim 5, Howard teaches wherein, “The stabiliser polymer (I) may have a molecular weight less than 50,000 [daltons]. Preferably, less than 35,000. More preferably, less than 25,000. The molecular weight may be in the range from 2,000 to 25,000. More preferably, in the range from 4,000 to 18,000. Further preferably, in the range from 6,000 to 12,000. Most preferably, in the range from 7,500 to 10,000. Preferable stabiliser polymers (I) are copolymers of acrylic acid with alkyl methacrylates or styrene with molecular weights of less than 20,000, and a Tg of more than 30°C.” (¶[0040] and [0041]). Further, Howard details preferred emulsion polymers containing mixtures of the stabiliser polymer (I) monomers and core polymer (II) monomers, wherein the molecular weight descriptor applied to describe the stabiliser polymer (I) monomers ranges from a molecular weight of ∼10,000 Da to ∼6,500 Da (¶[0101] and Table 1, ¶[0113]), demonstrating that the inventors were working within the same low molecular weight paradigm, and “Most preferably the core polymer (II) is selected from copolymers of an acrylate and a styrene. Said acrylate selected from the list comprising 2-ethyl-hexyl acrylate, butyl acrylate, sec-butyl acrylate, ethyl acrylate, methyl acrylate, acrylic acid, acrylamide, iso-butyl acrylate, methyl methacrylate, or combinations thereof. Said styrene selected from the list comprising styrene, tert-butyl styrene, para-methyl styrene, or combinations thereof. The polymer desirably has a molecular weight of no more than 10,000.” (¶[0095] and [0096]).” Thus, the copolymer containing the first and second monomers of stabiliser polymer (I) and core polymer (II) of the invention disclosed by Howard would preferably have a molecular weight of less than 30,000 daltons, and more preferably no more than 16,000-22,000 daltons (assuming a maximum 50 stabiliser : 50 core polymer ratio, supported by ¶[0102], but more preferably less if the core polymer concentration ranges from 60-85% as so stated in the paragraph), squarely falling entirely within the 15,000-30,000 daltons limitation of instant claim 5. The step from these specific values to the upper end of the instant claimed range is a matter of degree, not kind. The prior art's general teaching of "less than 30,000" and its specific examples provide ample guidance that inherently leads to products within the claimed range.
Howard teaches, “The stabiliser polymer (I) can be made by free radical initiated polymerisation, e.g. using a peroxide or a redox initiator, particularly by solution polymerisation, of the constituent monomers, optionally also with a chain transfer agent such as an alkyl mercaptan which acts to control the molecular weight of the polymer. Suitable methods are described for example in EP 0697422.” (¶[0067]) and “The core polymers (II) are known in the art and can be produced by known methods, e.g. by polymerisation starting from suitable monomers. The core polymer (II) may preferably be formed in-situ when forming the emulsion polymer with the pre-formed stabiliser polymer (I). The emulsion polymer b) may be made by any known method, and in particular by emulsion polymerisation. In particular the core polymer may be formed in-situ during the emulsion polymerisation process to form the core polymer stabilised with low molecular weight stabiliser. It will be appreciated that other methods may be used to form the polymer, such as bulk polymerisation, may be used.” (¶[0097]-[0099]). Under the broadest reasonable interpretation, the prior art's teaching of a "copolymer" encompasses a "random copolymer" unless the reference specifically teaches away from it (e.g., by describing a block copolymer).
The text by Howard explicitly states the stabilizer polymer "can be made by free radical initiated polymerisation", in which conventional free-radical copolymerization, without special techniques or catalysts designed to control sequence or random monomer addition to the polymer chain, is universally recognized as producing random copolymers. Thus, it would be obvious to a person skilled in polymer chemistry that this method would inherently result in random copolymer structures in the absence of mentioning any specific techniques (e.g., anionic polymerization with randomizing agents or specialized catalysts) that would enforce an alternating or block-like sequence or claims of any specific sequence control. This disclosed process inevitably and necessarily results in a random copolymer, inherently discloses a random structure, in the absence of disclosing further techniques to control the sequence.
Furthermore, this instant claim limitation is also obvious, given that a person skilled in the art would expect a random copolymer from a standard free-radical process, it would be obvious to use this known method to produce such a copolymer. The claimed random structure is not a new discovery but the expected and inevitable result of applying a well-known process. In summary, the described free-radical polymerization process makes it both inherent and obvious that the resulting copolymer has a random structure.
In addition, instant claim 5 is directed to a copolymer product with a certain molecular weight, wherein Gel Permeation Chromatography (GPC) is merely a method of measuring an intrinsic property of that product. The molecular weight is an intrinsic property of the polymer product. Although Howard does not explicitly specify a molecular weight measurement technique, the claimed characteristic would naturally result by following Howard’s teachings and yield a copolymer product that has a molecular weight of 15,000-30,000 Daltons in certain embodiments when measured by GPC, regardless of whether it specified the measurement technique. Further, GPC is the standard, widely accepted method in polymer chemistry for determining molecular weight. It is reasonable to presume that the molecular weights disclosed in the prior art were measured using a standard technique in the field of polymer science, and the values disclosed in the reference are reasonably presumed to be comparable.
New Rejections
The following new rejections are made from the previous Office Correspondence dated 02 October 2025, as the Applicant's amendment necessitated the new grounds of rejection presented below based on the amended/newly cited limitations.
Claim Objections
Claim 2 is objected to because of the following informalities:
Claim 2 is objected to as being redundant of the limitations already recited in the newly amended claim 1. Specifically, claim 1 as amended recites, "a copolymer at 0.5 wt% to 4.0 wt% of the agricultural formulation". Claim 2 recites "the agricultural formulation comprises from 0.5 wt% to 4.0 wt% of the copolymer based on a total weight of the agricultural formulation," which does not further limit the composition beyond what is already required by claim 1. Inclusion of redundant claims may obscure the metes and bounds of the claimed subject matter. The applicant is advised to cancel or suitably amend claim 2 to provide a meaningful limitation not already present in claim 1.
Claim Rejections - 35 USC § 112(b)
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 Applicant regards as his invention.
Claim 11 is 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, regards as the invention.
Claim 11 recites "the formulation retains at least 80% of the active ingredient" and the phrase "the formulation" lacks proper antecedent basis because claim 11 depends from claim 1, and claim 1 recites "an agricultural formulation" (indefinite article). The correct antecedent would be "the agricultural formulation of claim 1". Appropriate correction is required for clarity.
In addition, claim 11 is rejected as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor regards as the invention for the following reasons:
Lack of defined testing parameters: The claim does not specify the nature of the "simulated leaf” (e.g., material, morphology, surface energy). The Specification at ¶[0046] describes use of a Parafilm® sheet to mimic plant leaves. However, the claim is not limited to Parafilm®. A person of ordinary skill in the art would not know with reasonable certainty what substrate constitutes a "simulated leaf" for purposes of the claim, as simulated leaves can vary widely in surface energy, wax content, porosity, and chemical composition (e.g., Parafilm®, polyethylene, polypropylene, excised leaf surfaces with intact cuticles, or artificial waxy surfaces; see Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 901 (2014), wherein a claim is indefinite when it fails to inform, with reasonable certainty, those skilled in the art about the scope of the invention).
Lack of defined rainfall parameters: The claim does not specify the intensity, droplet size, duration, angle, or water chemistry of the "simulated rainfall". The Specification at ¶[0046] describes a specific rain simulator (Exo Terra Monsoon RS400) with a flow rate of 6 liters per hour at a distance of 33 centimeters from the nozzle. However, the claim is not limited to these parameters. Without such parameters, the scope of the claim is ambiguous.
Lack of baseline for retention measurement: The claim recites, "retains at least 80% of the active ingredient" but does not specify the baseline amount from which retention is measured (e.g., is this 80% of the initially applied amount, 80% of a theoretical maximum deposit, or 80% of the amount deposited after drying). No standardized test method is recited.
This ambiguity renders the metes and bounds of the claim unclear. Without clear boundaries, a person of ordinary skill in the art cannot determine the scope of the claim with reasonable certainty.
To overcome this rejection, the applicant is advised to amend claim 11 to incorporate the specific test conditions disclosed in the Specification, as set forth in ¶[0046]-[0048] (e.g., "wherein, when tested according to the method set forth in the specification at paragraphs ¶[0046]-[0048], the formulation retains at least 80% of the active ingredient initially deposited on a Parafilm® substrate after 30 minutes of simulated rainfall at a flow rate of 6 liters per hour from a distance of 33 centimeters", or some other appropriate modification).
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-AlA 35 U.S.C. § 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AlA) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. § 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. § 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. § 102(b)(2)(C) for any potential 35 U.S.C. § 102(a)(2) prior art against the later invention.
Claims 1 and 11 are rejected under 35 U.S.C. § 103 as being unpatentable over Norton et al. (US20140187424A1; published 2014-07-03, hereinafter referred to as “Norton”), in view of Howard et al. (EP3248465A1; published 2017-11-29, hereinafter referred to as “Howard”) and in further view of Symonds et al. (Chitosan as a rainfastness adjuvant for agrochemicals. RSC Advances, 6(104), 102206-102213; published 18 October 2016, hereinafter referred to as “Symonds”).
Norton and Howard teach the limitations of instant claim 1, as described above, from which instant claim 11 depends.
Regarding instant claim 11, Norton teaches that its polymer-associated formulations exhibit improved rainfastness (¶[0004] and ¶[0033]). Howard teaches that its emulsion polymers provide retention on foliage (Table 2, ¶[0013], ¶[0128]).
Symonds teaches that a rainfastness polymeric adjuvant (chitosan) formulated with an active ingredient (azoxystrobin) achieves almost 100% retention of the active ingredient on leaf surfaces after 1 hour of simulated rain at an intensity of 10 mm h⁻¹ (Abstract). Thus, achieving high retention (>80%) after rainfall using polymeric adjuvants even at low concentrations (i.e., 0.04-0.4 wt%) in agrochemical formulations was known at the time of the invention as well as targeting such a performance metric. Hence, retention values at or above 80% are achievable polymers and therefore constitute a predictable optimization target, not a critical threshold, wherein increased retention is a predictable result of increasing adhesion using polymeric adjuvants.
The claimed ≥80% retention represents a result-effective variable that would have been obvious to optimize in view of known polymer-based rainfastness systems. While Symonds uses actual Vicia faba leaves rather than a simulated leaf, one of ordinary skill in the art would recognize that substituting an artificial substrate (e.g., Parafilm®) for a natural leaf surface in a rainfastness test is a routine experimental choice.
Achieving any improvement in rainfastness would have been obvious formulation goal to one of ordinary skill in the art of agricultural formulation science and at least 80% retention of an active ingredient on a leaf surface after rainfall is an arbitrary selection within a routine and predictable goal range. The applicant has not demonstrated that the claimed 80% retention value is critical or unexpected. The combination of Norton and Howard already teaches compositions inherently capable of achieving such rainfastness performance limitations when formulated within the claimed parameters at a particular copolymer concentration.
Thus, one of ordinary skill in the art at the time of the instant invention, having formulated the copolymer composition of claim 1 (as taught by Norton and Howard) and seeking to achieve rainfastness, would have been motivated to test that composition using standard rainfastness protocols (similar to that taught by Symonds) and would have reasonably expected to achieve high retention (e.g., at least 80%) after 30 minutes of rainfall, as Symonds demonstrates that such high retention is achievable with polymeric rainfastness adjuvants after 1 hour of rainfall. Optimizing the formulation to achieve at least 80% retention constitutes routine optimization of a result-effective variable (adjusting copolymer concentration), yielding predictable results.
Accordingly, claim 11 is prima facie obvious (see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007), wherein when there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp).
Response to Arguments
Applicant Arguments/Remarks of the reply, filed 07 January 2026, have been fully considered, but are not persuasive for the reasons set forth below. The prior art combination continues to teach or render obvious each limitation of the claims, including the newly added claim 11.
The applicant argues that the combination of Norton and Howard fails to teach or suggest a copolymer at the low concentration of 0.5-4.0 wt%, a single water-soluble copolymer (as opposed to an emulsion system), and the specific hydrophilic/hydrophobic monomer ratios. These arguments are not persuasive.
The applicant contends that Howard requires high polymer solids (40-60%) and does not disclose low total polymer concentrations. This argument is not persuasive because it is directed to the form of the polymer system (emulsion vs. non-emulsion) rather than the actual concentration of polymer solids present in the formulation, which is the claimed limitation.
As established in the prior Office Action, Howard explicitly teaches emulsion polymer dispersions (component b) used at ~3.0 wt% (present at 30 g/L, wherein in in a typical agricultural formulation with a density near 1 g/mL, 30 g/L equates to 3.0 wt% of the additive) the final formulation (Example 1, ¶[0143], [0146]). Howard’s Table 2 further teaches that the polymer dispersion itself has an actual solid content of 41.05–50.51 wt% solids in dispersion (¶[0113]). Multiplying the additive concentration (3.0 wt%) by the solids fraction (~0.45) yields an actual copolymer solids concentration of approximately 1.35-1.5 wt%, which squarely falls within the applicant’s claimed range of 0.5-4.0 wt%.
Thus, regardless of whether the polymer originates from an emulsion dispersion, the resulting formulation composition satisfies the claimed concentration range. The applicant’s argument that Howard requires “substantially higher polymer loadings” is factually incorrect. It is well established that product-by-process distinctions are not limiting where the final composition is the same (see In re Thorpe, 777 F.2d 695 (Fed. Cir. 1985)). Further, modifying a formulation by reducing polymer loading, or omitting emulsification steps constitutes routine optimization of formulation architecture, particularly where the function (e.g., adhesion, retention, dispersion) remains unchanged.
The applicant argues that Howard’s emulsion system requires two polymers (stabilizer and core) and that the claimed invention uses a “single water-soluble copolymer”. However, Howard discloses emulsion systems as preferred embodiments, not exclusive ones, and explicitly teaches that polymers may be formed by other methods, including bulk polymerization (¶[0099]). Howard focuses on functional performance (i.e., retention, stability, dispersion), not strictly the emulsion form. A person of ordinary skill in the art would recognize that emulsion systems are one implementation of delivering polymer functionality and that equivalent functionality (e.g., adhesion, rainfastness) may be achieved using dissolved or dispersed polymers at comparable effective concentrations. Eliminating the emulsion structure while retaining polymer chemistry represents an obvious simplification motivated by cost, processing ease, or formulation stability. No evidence of criticality tied specifically to the absence of emulsions has been provided.
Further, Howard’s stabilizer polymer (I) and core polymer (II) together form a single emulsion polymer particle. The claimed copolymer is not required to be “water-soluble” as a standalone feature, as the copolymer of claim 1 is defined only by its monomer composition, not by solubility. Howard’s combination of a hydrophilic stabilizer (e.g., methacrylic acid) and a hydrophobic core (e.g., butyl methacrylate) produces a copolymer system with monomeric ratios that overlap entirely with the claimed ranges. One of ordinary skill would recognize that reducing Howard’s two-polymer system to a single copolymer having the same overall monomer ratios is a routine experimental optimization for one of skill in the art, not a patentable distinction. Norton independently teaches a single copolymer of methacrylic acid and butyl methacrylate (¶[0115]).
The applicant contends that there is no motivation to eliminate emulsions, use a single copolymer, and reduce concentration to 0.5-4 wt%. This argument is not persuasive. Both references teach polymer-based delivery systems for agrochemicals and identify polymer concentration as a result-effective variable. Thus, the motivation to combine is to optimize polymer concentration, wherein optimization of such variables is prima facie obvious.
A person of ordinary skill in the art would also be motivated to reduce formulation complexity (Howard uses multi-component systems), lower cost and improve manufacturability, and avoid instability associated with emulsions. Such motivations are well-established in formulation science. One of skill in the art would have a reasonable expectation if success in combing the teachings of the references because both references use identical monomer chemistries (i.e., methacrylic acid and alkyl methacrylates) and demonstrate compatibility with hydrophobic actives. Similar adhesion/retention performance at adjusted concentrations would be reasonably expected.
The applicant argues that the specific ratio of 60-70 wt% butyl methacrylate and 30-40 wt% methacrylic acid (claim 9) is not disclosed. This is incorrect. Howard ¶[0102] explicitly teaches a ratio of stabilizer polymer (I) to core polymer (II) of 30:70 (i.e., 30 wt% stabilizer, 70 wt% core; ¶[0102])). Howard identifies hydrophilic methacrylic acid as a suitable monomer for the stabilizer (¶[0044]) and hydrophobic butyl methacrylate as a suitable monomer for the core (¶[0057] and ¶[0079]). Thus, the claimed ratio is explicitly encompassed. Selection of a specific ratio within a disclosed range is prima facie obvious absent criticality (In re Peterson, 315 F.3d 1325 (Fed. Cir. 2003)).
The applicant points to Table 2 data showing >90% active retention after 30 minutes of simulated rainfall (IE3, IE4) as unexpected results. However, secondary considerations must be commensurate in scope with the claimed invention. Claim 1 broadly covers any acrylic monomers within wide log Kow ranges and any active ingredient >1.0 log Kow. Although, the data in Table 2 compare only a few specific formulations. The applicant has not provided direct comparative data showing that the claimed formulations outperform the closest prior art (e.g., Howard’s formulations at similar copolymer concentrations; see In re Geisler, 116 F.3d 1465, 1469 (Fed. Cir. 1997)). Therefore, the asserted results are not sufficient to establish unexpected properties across the full scope of the claims (MPEP §716.02).
Moreover, the ability to retain active ingredient on a leaf after rainfall is an inherent goal of rainfastness additives, wherein achieving that goal at a particular copolymer concentration is a matter of routine optimization, not unexpected. The result is expected as both references teach retention agents, adhesion-promoting polymers, and improved rainfastness is a predictable property of such polymers.
Conclusion
No claims are allowed. The applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (87 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REBECCA L. SCOTLAND whose telephone number is (571) 272-2979. The examiner can normally be reached M-F 9:00 am to 5:00 pm EST.
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) at: http:/Awww.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’ s supervisor, Robert A. Wax can be reached at (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 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:/Awww.uspto.gov/patents/apply/patent- center for more information about Patent Center and https:/Awww.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.
/RL Scotland/
Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
Prosecution Insights