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 .
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 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.
Priority
The instant application 18/551,255, filed 09/19/2023, is a 371 National Stage Entry of international patent application PCT/EP2022/057156, filed 03/18/2022, and claims foreign priority to European patent application EP 21163835.8, filed 03/19/2021.
Status of Application and Claims
The preliminary amendment filed 09/19/2023 is acknowledged. Claims 3-12 and 15 are amended. Claims 1-15 are currently pending and are examined on the merits herein.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 09/19/2023 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the examiner.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 4, 8, and 15 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claims contain subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventors, at the time the application was filed, had possession of the claimed invention.
The specification discloses a specific ethoxylated fatty alcohol, oleyl alcohol polyglycol ether, which satisfies the written description and enablement provisions of 35 USC 112, first paragraph. However, claims 1, 4 and 8 are directed to encompass any ethoxylated fatty alcohol (absent any further descriptors), which only corresponds in some undefined way to the specifically instantly disclosed oleyl alcohol polyglycol ether. Only the specifically disclosed oleyl alcohol polyglycol ether meets the written description provision of 35 USC § 112, first paragraph. The broad genus of “ethoxylated fatty alcohol,” however, does not meet the written description provisions due to a lack of specific chemical structural information of the ethoxylated fatty alcohols. The specification provides no guidance as to determine specific ethoxylated fatty alcohols besides oleyl alcohol polyglycol ether which fulfill this description. The specification provides insufficient written description to support the genus encompassed by the claim.
Additionally, the specification discloses one broad genus of “pesticidally active ingredient” to be added to the composition. This broad genus is also recited in claim 15. The genus of “pesticidally active ingredient” is extremely broad and encompasses numerous variants of compounds, and therefore does not meet the written description provisions due to a lack of specific chemical structural information based on what is appropriate to use in the composition. The specification provides no guidance as to determine specific pesticidally active agents which fulfill this description. The specification provides insufficient written description to support the genus encompassed by the claim.
Vas-Cath Inc. v. Mahurkar, 19 USPQ2d 1111, makes clear that "applicant must convey with reasonable clarity to those skilled in the art that, as of the filing date sought, he or she was in possession of the invention. The invention is, for purposes of the 'written description' inquiry, whatever is now claimed." (See page 1117.) The specification does not "clearly allow persons of ordinary skill in the art to recognize that [he or she] invented what is claimed." (See Vas-Cath at page 1116.)
With the exception of the above specifically disclosed chemical structure (oleyl alcohol polyglycol ether), the skilled artisan cannot envision the detailed chemical structure of all ethoxylated fatty alcohols appropriate for use in the aqueous suspension concentrate composition of the present invention. Similarly, the skilled artisan cannot envision the detailed chemical structure of all pesticidally active agents appropriate for use in the aqueous suspension concentrate composition of the present invention. Adequate written description requires more than a mere statement that it is part of the invention. See Fiers v. Revel, 25 USPQ2d 1601, 1606 (CAFC 1993) and Amgen Inc. V. Chugai Pharmaceutical Co. Ltd., 18 USPQ2d 1016. In Fiddes v. Baird, 30 USPQ2d 1481, 1483, claims directed to mammalian FGF's were found unpatentable due to lack of written description for the broad class. The specification provided only the bovine sequence. Finally, University of California v. Eli Lilly and Co., 43 USPQ2d 1398, 1404, 1405 held that:
...To fulfill the written description requirement, a patent specification must describe an invention and do so in sufficient detail that one skilled in the art can clearly conclude that "the inventor invented the claimed invention." Lockwood v. American Airlines, Inc., 107 F.3d 1565, 1572, 41 USPQ2d 1961, 1966 (1997); In re Gosteli, 872 F.2d 1008, 1012, 10 USPQ2d 1614, 1618 (Fed. Cir. 1989) (" [T]he description must clearly allow persons of ordinary skill in the art to recognize that [the inventor] invented what is claimed."). Thus, an applicant complies with the written description requirement "by describing the invention, with all its claimed limitations, not that which makes it obvious," and by using "such descriptive means as words, structures, figures, diagrams, formulas, etc., that set forth the claimed invention." Lockwood, 107 F.3d at 1572, 41 USPQ2d at 1966.
Therefore, only the above chemically structurally defined chemical oleyl alcohol polyglycol ether, but not the full breadth of claims 1, 4, and 8, meets the written description provision of 35 USC § 112, first paragraph. The species specifically disclosed is not representative of the genus because the genus is highly variant. Furthermore, the full breadth of claim 15 does not meet the written description provision of 35 USC § 112, first paragraph, due to the extreme broadness and high variance of the genus without sufficient clarification in the specification. Applicant is reminded that Vas-Cath makes clear that the written description provision of 35 USC § 112 is severable from its enablement provision. (See page 1115.)
Claims 12-15 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claims contain subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
The specification, while being enabling for protection against a broad spectrum of nematode pests and diseases, does not reasonably provide enablement for prevention of nematicidal or fungicidal damage in a plant. The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to use the invention commensurate in scope with these claims.
To be enabling, the specification of the patent must teach those skilled in the art how to make and use the full scope of the claimed invention without undue experimentation. In re Wright, 999 F.2d 1557, 1561 (Fed. Cir. 1993). Explaining what is meant by “undue experimentation,” the Federal Circuit has stated:
The test is not merely quantitative, since a considerable amount of experimentation is permissible, if it is merely routine, or if the specification in question provides a reasonable amount of guidance with respect to the direction in which the experimentation should proceed to enable the determination of how to practice a desired embodiment of the claimed invention. PPG v. Guardian, 75 F.3d 1558, 1564 (Fed. Cir. 1996).[1]
The factors that may be considered in determining whether a disclosure would require undue experimentation are set forth by In re Wands, 8 USPQ2d 1400 (CAFC 1988) at 1404 where the court set forth the eight factors to consider when assessing if a disclosure would have required undue experimentation. Citing Ex parte Formal, 230 USPQ 546 (BdApls 1986) at 547 the court recited eight factors:
1) the quantity of experimentation necessary,
2) the amount of direction or guidance provided,
3) the presence or absence of working examples,
4) the nature of the invention,
5) the state of the prior art,
6) the relative skill of those in the art,
7) the predictability of the art, and
8) the breadth of the claims.
These factors are always applied against the background understanding that scope of enablement varies inversely with the degree of unpredictability involved. In re Fisher, 57 CCPA 1099, 1108, 427 F.2d 833, 839, 166 USPQ 18, 24 (1970). Keeping that in mind, the Wands factors are relevant to the instant fact situation for the following reasons:
The nature of the invention, relative skill level, and breadth of the claims
The instant invention is directed to methods of using an aqueous suspension concentrate composition containing cyclobutrifluram to reduce or prevent nematicidal or fungicidal damage in a plant.
The complex nature of the claims is greatly exacerbated by the breath of the claims. The claims encompass broad ways that an aqueous suspension concentrate composition containing cyclobutrifluram prevents nematicidal or fungicidal damage to a plant. The relative skill of those in the art is high, that of an MD or PhD.
The state and predictability of the art
The state of the art recognizes that cyclobutrifluram provides broad spectrum control of nematodes and key fungal diseases, particularly soil-borne diseases. As illustrative of the state of the art, the examiner cites Anon.; "Syngenta announces TYMIRIUM technology brand"; 07 May 2020; pp.1-2; URL:https:/Awww.syngenta.com/en/company/media/syngenta-news/year/2020/syngenta-announces-tymirium-tm-technology-brand (cited in IDS).
The lack of significant guidance from the specification or the prior art with regard to preventing nematicidal or fungicidal damage in a plant makes practicing the scope of the invention unpredictable. Since the instant specification provides no limiting definition of the term “prevention”, the examiner will adopt the broadest reasonable interpretation for it. The Merriam-Webster’s Online Dictionary defines “prevent” as “to keep from happening or existing”, i.e., to completely eradicate.
The claim is thus very broad insofar as it recites prevention of nematicidal or fungicidal damage in a plant, i.e., the complete eradication of the same. While such “prevention” might theoretically be possible under strictly controlled laboratory conditions, as a practical matter it is nearly impossible to achieve in the “real world;” complications such as infection by any nematodes or fungi besides the nematodes and/or key fungi/soil-borne diseases controlled by cyclobutrifluram, failure of the concentrate composition to properly adhere to the seeds of the plant being treated for protection, and/or development of nematicidal or fungicidal population immunity is always a risk.
The amount of direction or guidance provided and the presence or absence of working examples
The specification provides no direction or guidance for preventing nematicidal or fungicidal damage in a plant. The specification only states that cyclobutrifluram provides protection against a broad spectrum of nematode pests and diseases across major crops and geographies (instant specification p. 1 lines 9-15). This guidance fails to address the complete eradication of all nematocidal or fungicidal damage in a plant. Due to the limited guidance in the art surrounding preventing all nematocidal or fungicidal damage in a plant, one of ordinary skill would undergo undue experimentation in deducing which nematocidal and fungicidal damage can be eradicated by the instantly claimed cyclobutrifluram suspension concentrate, at what effective concentrations, etc.
There are no provided working examples of the specification directed towards preventing nematicidal or fungicidal damage in a plant. The principles, preferred embodiments, and modes of operation described in the specification fail to enable prevention of nematicidal or fungicidal damage in a plant.
The quantity of experimentation necessary
Because of the known unpredictability of the art, and in the absence of experimental evidence, no one skilled in the art would accept the assertion that the instantly claimed method of applying the aqueous suspension concentrate composition to a seed of a plant could be predictably used to prevent nematicidal or fungicidal damage in a plant as inferred by the claim and contemplated by the specification. Accordingly, the instant claims do not comply with the enablement requirement of §112, since to practice the invention claimed in the patent a person of ordinary skill in the art would have to engage in undue experimentation, with no assurance of success.
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 1-4 and 12-15 are rejected under 35 U.S.C. 103 as being unpatentable over CN-111990405-A (Shao, Y. et al) published 11/27/2020 (cited, with machine translation, in PTO-892) in view of WO-2020245088-A1 (Martelletti, A. et al) published 12/10/2020 (cited in PTO-892). The examiner notes that WO’088 is the PCT counterpart to US Patent Application Publication US 2022/0322661 A1 (Martelletti et. al.; cited in PTO-892). WO’088 has a 102(a)(1) date as a result of its 11/27/2020 publication date. Because WO’088 and US’661 appear to have identical disclosures, and because the WO document was published in the German language designating the United States, US’661, which is the National Stage entry of WO’088, is being used as a translation of WO’088. As such, any reference hereinafter to column, line and paragraph numbers will be based upon the US publication, but should be interpreted as referring to the corresponding disclosure of the aforementioned WO counterpart.
Shao teaches a nematicidal agricultural composition containing fluopyram and cyclobutrifluram wherein the mass ratio of fluopyram to cyclobutrifluram in the agricultural composition is 5:1-1:5 (claims 1 and 2). Shao teaches the composition is formulated in an agriculturally acceptable formulation, with components including adjuvants or carriers to assist the efficacy of the fluopyram and cyclobutrifluram (claim 3). Shao exemplifies the use of a 400 g/L fluopyram-cyclobutrifluram suspension, wherein the mass ratio of fluopyram to cyclobutrifluram is 5:1, and demonstrates its improved efficacy against Meloidogyne incognita inoculated on root seedlings compared to a suspension of fluopyram alone and a suspension of cyclobutrifluram alone ([0023]-[0030]). The Examiner calculates the concentration of cyclobutrifluram in the exemplified 400 g/L suspension to be roughly 67 g/L in the suspension when in a mass ratio of 5 fluopyram to 1 cyclobutrifluram. Shao also exemplifies the use of a similar preparation of fluopyram-cyclobutrifluram in controlling peanut root knot nematodes ([0036]-[0039]).
Shao teaches that, in order to fully exert the efficacy of the active ingredients in the pesticide, they can be prepared in a formulation that is convenient for application; the dosage form can include suspensions, and when forming said dosage form the ordinarily skilled artisan will know that, in addition to using the pesticide containing nematicidal active ingredients, a variety of adjuvants are needed, such as one or more of a dispersion medium, a dispersant, an emulsifier, a wetting agent, a thickener, defoaming agent, antifreeze agent, disintegrant, binder, filler, carrier, and the like ([0015]).
Shao teaches the nematicidal agricultural composition can be applied in various ways, including seed soaking; soil-borne nematodes are preferentially controlled by soil treatment such as seed soaking and seed coating ([0016]).
Shao differs from the instantly claimed invention in that it fails to teach the cyclobutrifluram is present in an aqueous suspension concentrate composition, which includes 25-125 g/L of a vegetable oil and 25-125 g/L of an ethoxylated fatty alcohol, as recited in instant claim 1; more narrowly, Shao fails to teach that the composition comprises 75-125 g/L of vegetable oil, and 60-110 g/L of ethoxylated fatty alcohol, as recited in instant claim 4. Because Shao doesn’t teach inclusion of these two ingredients, Shao fails to teach that the composition comprises more vegetable oil than ethoxylated fatty alcohol, as recited in instant claim 3. Additionally, Shao fails to teach that said composition comprises 100 to 300 g/L of cyclobutrifluram, as recited in instant claim 2.
Because Shao doesn’t teach the full composition of claim 1, Shao also differs from the instantly claimed invention in that it fails to teach a method of reducing or preventing nematicidal or fungicidal damage in a plant comprising applying a composition according to claim 1 to the seed of a plant, wherein the plant is selected from a long list, more narrowly barley, wheat, peanut, and rice, as recited in instant claims 12-14. Also due to the fact that Shao doesn’t teach this method, Shao also doesn’t teach the method wherein the composition comprises a further pesticidally active ingredient, as recited in instant claim 15.
Martelletti teaches adjuvants in agrochemical formulations can have various functions, such as, for example, improving application of sprays, increasing effectiveness of agrochemical active ingredients, and reducing drift of active ingredients ([0006]). Martelletti teaches an adjuvant combination for improving bioavailability of an active ingredient in an herbicidal composition ([0004]). Martelletti teaches the adjuvant combination contains (a) tris(2-ethylhexyl)phosphate (TEHP), (b) at least one alkyl ether phosphate ammonium salt, (c) at least one emulsifier, and (d) at least one wetting agent ([0014]). Martelletti teaches the adjuvant combination (TEHP premix V) contains: as wetting agents (component (d)), Genapol ® LRO paste at 62.5 g/L (6.25 % w/w) and Genapol ® X-060 at 75 g/L (7.5 % w/w); as alkyl ether phosphate ammonium salt (component (b)), Geronol ® CF/AR-E at 300 g/L (30 % w/w); as emulsifier (component (c)), Lucramul ® CO 30 at 62.5 g/L (6.25 % w/w); and as TEHP (component (a)), Disflamoll ® TOF at 500 g/L (50 % w/w) ([0099] Table 1). Martelletti teaches that Genapol ® X-060 is the tradename for tridecyl polyethylene glycol ether and isotridecyl alcohol polyglycol ether with 6 ethylene oxide (EO), and Lucramul ® CO 30 is ethoxylated castor oil ([0097]-[0098]). A combination of tridecyl polyethylene glycol ether and isotridecyl alcohol polyglycol ether with 6 ethylene oxide (EO) reads as a species of ethoxylated fatty alcohol, and ethoxylated castor oil reads as a species of vegetable oil. Thus, Martelletti teaches inclusion of ethoxylated fatty alcohol (in the form of Genapol ® X-060) at a concentration of 75 g/L as wetting agent in the adjuvant combination, and vegetable oil (in the form of Lucramul ® CO 30) at a concentration of 62.5 g/L as emulsifier in the adjuvant combination.
Martelletti also teaches that components (c) and/or (d) are present in the adjuvant combination at 10% by weight to 25% by weight, optionally at 12% by weight to 23% by weight, and optionally 12% by weight to 22% by weight, based on the total weight of the adjuvant combination (claim 5).
Martelletti teaches an herbicidal composition comprising at least one active agrochemical ingredient and the adjuvant combination may be used in customary formulations known to those skilled in the art, including in the form of a suspension concentrate (SC) (claims 9-11; [0048]). Martelletti teaches suspension concentrates may be water- or oil-based ([0054]).
Regarding claim 1 (wherein the cyclobutrifluram is present in an aqueous suspension concentrate composition, which comprises 25-125 g/L of a vegetable oil and 25-125 g/L of an ethoxylated fatty alcohol), it would have been prima facie obvious for a person having ordinary skill in the art, before the effective filing date of the instantly claimed invention, to (1) add the adjuvant combination of Martelletti, with Martelletti’s taught concentrations for components including the Genapol ® X-060 (ethoxylated fatty alcohols) and Lucramul ® CO 30 (vegetable oil), to the nematicidal composition of fluopyram and cyclobutrifluram taught by Shao, and (2) formulate the resulting formulation containing the nematicidal ingredients and adjuvant combination into a water-based suspension concentrate, and arrive at the instantly claimed invention. The ordinarily skilled artisan would have been motivated to perform modification (1) because Shao teaches that a variety of adjuvants are needed in combination with the nematicidal active agents in order to formulate a dosage form appropriate for application of the agents; Martelletti provides a suitable adjuvant combination for agrochemical applications which, when combined with agricultural active, facilitates improved bioavailability of the agricultural active, and thus the nematicidal actives of Shao would benefit from the adjuvant combination taught by Martelletti when formulated together in an agricultural composition. The ordinarily skilled artisan would find a reasonable expectation of success performing modification (1) based on the fact that Shao teaches the ordinarily skilled artisan will know that adjuvants are necessary in the formulation, and Martelletti teaches this combination of adjuvants to be suitable in agricultural applications. The ordinarily skilled artisan would have been motivated to perform modification (2) because Shao teaches its nematicidal actives are effective in a suspension formulation for application to plants affected by nematodes, and Martelletti teaches water-based suspension concentrates to be appropriate agricultural formulations when using the specifically-taught adjuvant combination. The ordinarily skilled artisan would have thus formulated a water-based (aqueous) suspension concentrate of the nematicidal agricultural composition of Shao when combined with the adjuvants of Martelletti, and would have a reasonable expectation of success doing so based on the fact that Shao teaches its agricultural actives are appropriate for use in suspension formulations, and Martelletti teaches its adjuvants are also appropriate for use in water-based suspension concentrates.
Regarding claim 2 (wherein the composition comprises 100 to 300 g/L of cyclobutrifluram), it would have been prima facie obvious for a person having ordinary skill in the art, before the effective filing date of the instantly claimed invention, to perform routine optimization on the amount of cyclobutrifluram in the agricultural composition combining Shao’s fluopyram and cyclobutrifluram with the adjuvants of Martelletti, for the purpose of optimizing nematicidal activity of the resulting composition, and arrive at the instantly claimed concentration range for cyclobutrifluram. Shao exemplifies the use of a 5:1 ratio of fluopyram to cyclobutrifluram in a 400 g/L suspension for nematicidal activity. Shao establishes that the amounts of fluopyram and cyclobutrifluram in the suspension are results-effective variables, with the observable result being the nematicidal activity against nematodes. Shao also teaches that the ratio of fluopyram to cyclobutrifluram can be anywhere from 5:1 to 1:5. When in a 400 g/L nematicidal suspension, this is equivalent to a range of roughly 67-335 g/L for both fluopyram and cyclobutrifluram, depending on the ratios between the two. Thus, Shao teaches a finite range of concentrations for cyclobutrifluram in a suspension composition (67-335 g/L) with which the ordinarily skilled artisan can perform routine optimization with a reasonable expectation of success, in order to optimize the nematicidal activity when combining the two ingredients with the adjuvants of Martelletti. Shao’s taught concentration range for cyclobutrifluram overlaps, and thus renders obvious, the claimed amount range for cyclobutrifluram recited in instant claim 2. Additionally, "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05 (I) and (II) for discussions on overlapping ranges and optimization within prior art conditions through routine experimentation.
Regarding claims 3 and 4 (wherein the composition comprises 75-125 g/L of vegetable oil, and 60-110 g/L of ethoxylated fatty alcohol, and the composition comprises more vegetable oil than ethoxylated fatty alcohol), it would have been prima facie obvious for a person having ordinary skill in the art, before the effective filing date of the instantly claimed invention, to perform routine optimization on the amounts of wetting agent and emulsifier adjuvants of Martelletti, upon combination with Shao’s nematicides, for the purpose of optimizing the wettability and emulsion properties of the resulting suspension concentrate composition, and arrive at the instantly claimed amount limitations for vegetable oil and ethoxylated fatty alcohol. Martelletti establishes the purpose of ethoxylated fatty alcohol (in the form of Genapol ® X-060) is to be a wetting agent in the adjuvant combination, and the purpose of vegetable oil (in the form of Lucramul ® CO 30) is to be an emulsifier in the adjuvant combination. In other words, Martelletti establishes that the amounts of ethoxylated fatty alcohol and vegetable oil in a composition are results-effective variables, with the observable results being improved wettability and emulsion properties, respectively, when combined in an agricultural suspension composition. Martelletti also teaches that the amounts for wetting agent(s) and emulsifier can vary, but teaches both the wetting agent and emulsifier components are each present in the adjuvant combination at 10% by weight to 25% by weight of the adjuvant combination. Based on Martelletti’s teachings that 75 g/L of Genapol ® X-060 (ethoxylated fatty alcohol) is equivalent to 7.5 % w/w of the adjuvant combination, and 62.5 g/L of Lucramul ® CO 30 (vegetable oil) is equivalent to 6.25 % w/w of the adjuvant combination, the Examiner has calculated finite ranges for wetting agent and emulsifier in the adjuvant combination to be anywhere between 100-250 g/L (equivalent to 10-25% w/w). Thus, Martelletti teaches a finite range of concentrations for wetting agent and emulsifier in an agricultural composition with which the ordinarily skilled artisan can perform routine optimization with a reasonable expectation of success, in order to optimize the wettability and emulsion properties upon combination of the adjuvants with Shao’s nematicidal actives into one suspension concentrate composition. Martelletti’s taught concentration ranges for wetting agent and emulsifier overlap, and thus render obvious, the claimed amount ranges for ethoxylated fatty alcohol and vegetable oil recited in instant claim 4. Furthermore, because it is prima facie obvious to perform routine optimization of the amounts of wetting agent and the emulsifier each within the ranges of 100-250 g/L (10-25% w/w), there are obviously instances wherein more emulsifier than wetting agent can be present, for example when wetting agent (ethoxylated fatty alcohol) is present at 10% w/w (100 g/L) and emulsifier (vegetable oil) is present at 12% w/w (120 g/L). Finally, "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05 (I) and (II) for discussions on overlapping ranges and optimization within prior art conditions through routine experimentation.
Regarding claims 12-15 (wherein the composition of claim 1 is applied to the seed of a plant in a method of reducing or preventing nematicidal or fungicidal damage, wherein the plant is chosen from a group including peanut, and wherein the composition comprises a further pesticidally active ingredient), it would have been prima facie obvious for a person having ordinary skill in the art, before the effective filing date of the instantly claimed invention, to apply the resulting suspension concentrate composition rendered obvious by the combined teachings of Shao and Martelletti (comprising both cyclobutrifluram and fluopyram as pesticidally active ingredients) to the seeds of a peanut plant using seed soaking or seed coating, and arrive at the instantly claimed invention. The ordinarily skilled artisan would have been motivated to do so because Shao teaches its combination of cyclobutrifluram and fluopyram is effective in controlling peanut root knot nematodes, and that soil-borne nematodes are preferentially controlled by soil treatment such as seed soaking and seed coating. Therefore, the ordinarily skilled artisan would be motivated to use the composition rendered obvious by the combined teachings of Shao and Martelletti by applying the composition to seeds of peanut plant in order to control and reduce damage caused by soil-borne root knot nematodes affecting peanut plants. The ordinarily skilled artisan would have a reasonable expectation of success applying the composition rendered obvious by the combined teachings of Shao and Martelletti to peanut seeds in order to reduce damage from root knot nematodes because Shao teaches this combination of nematicidal actives to be effective against peanut root knot nematodes.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over CN-111990405-A (Shao, Y. et al) published 11/27/2020 (cited, with machine translation, in PTO-892) in view of WO-2020245088-A1 (Martelletti, A. et al) published 12/10/2020 (cited in PTO-892; utilizing corresponding US patent application as English translation), as applied to claims 1-4 and 12-15 above, and further in view of US 2009/0186767 A1 (Arbogast, S. et al) published 07/23/2009 (cited in PTO-892).
The teachings of Shao and Martelletti, as they pertain to instant claims 1-4 and 12-15, are addressed supra.
The collective teachings differ from the instantly claimed invention in that they fail to teach the vegetable oil is soybean oil.
Arbogast teaches methods for applying bio-derived surfactants to crops and other plants or to the soil used for such plants in order to reduce the need to apply environmentally unfriendly pesticides substances (Abstract). Arbogast teaches that, in spite of the biobased compounds being relatively mild and non-toxic with respect to humans, and in spite of past teachings that might suggest such compounds would not be effective, a series of experiments have confirmed that such bio-derived surfactants can be used against a variety of pests, including parasitic nematodes, root weevils (e.g., Diaprepes abbreviatus), etc ([0022]). Arbogast teaches the bio-derived surfactants comprise surfactants obtained by esterification of vegetable lipids, in particular, from soybean oil and castor oil ([0066]). Arbogast teaches ethoxylated soybean oils and ethoxylated castor oils for use as the bio-derived surfactants ([0061]).
It would have been prima facie obvious, before the effective filing date of the claimed invention, for a person having ordinary skill in the art to replace the ethoxylated castor oil (Lucramul ® CO 30) in the resulting concentrate composition rendered obvious by the combined teachings of Shao and Martelletti (keeping Martelletti’s taught concentration for Lucramul ® CO 30), and instead use ethoxylated soybean oil, and arrive at the instantly claimed invention. Per MPEP 2143 I(B), it is prima facie obvious to simply substitute one known element for another to yield predictable results. The prior art suspension concentrate composition rendered obvious by the combined teachings of Shao and Martelletti differed from the instantly claimed invention in that the vegetable oil is castor oil, not soybean oil. However, Arbogast teaches these to be interchangeable when ethoxylated for the purpose of agricultural applications, and teaches that both can be helpful against pests including nematodes. The ordinarily skilled artisan could have substituted the ethoxylated castor oil in the concentrate composition with ethoxylated soybean oil, and the substitution would have predictably resulted in a comparable nematocidal concentrate composition for application to plants based on the fact that these are both ethoxylated vegetable oil surfactants applicable in agricultural settings, particularly nematocidal compositions.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over CN-111990405-A (Shao, Y. et al) published 11/27/2020 (cited, with machine translation, in PTO-892) in view of WO-2020245088-A1 (Martelletti, A. et al) published 12/10/2020 (cited in PTO-892; utilizing corresponding US patent application as English translation), as applied to claims 1-4 and 12-15 above, and further in view of WO 2014131337 A1 (Bristow, T.) published 09/04/2014 (cited in IDS).
The teachings of Shao and Martelletti, as they pertain to instant claims 1-4 and 12-15, are addressed supra.
The collective teachings differ from the instantly claimed invention in that they fail to teach the ethoxylated fatty alcohol is an oleyl alcohol polyglycol ether.
Bristow teaches there is a need for an improved agrochemical formulation for the treatment of seeds; it would be advantageous if formulations had a viscosity such that application of the formulation to seeds was made easier and quicker and the resultant coating on the seeds could be more even while maintaining the adhesion of the formulation to the seeds and without reducing the efficacy of the active ingredients (p. 2 lines 22-28). It has been found that polyethers having at least 16 polyoxyethylene moieties provide advantageous adhesion of a pesticidally active formulation to seeds being treated, without resulting in a significant increase in the viscosity of the formulation and without reducing the efficacy of the active ingredient (p. 4 lines 15-18). Bristow teaches preferred polyethers are polyethers of oleyl alcohol (p. 11 lines 24-29). Bristow exemplifies the use of oleyl alcohol polyglycol ether as adhesion promoter in an aqueous suspension composition, wherein the adhesion level after spraying the composition on dry bean seeds was 88% compared to a similar composition without the oleyl alcohol polyglycol ether only maintaining an adhesion level of 35% (claim 17; p. 22-23 Example 4).
It would have been prima facie obvious, before the effective filing date of the claimed invention, for a person having ordinary skill in the art to replace the Genapol ® X-060 (ethoxylated fatty alcohols) in the resulting concentrate composition rendered obvious by the combined teachings of Shao and Martelletti (keeping Martelletti’s taught concentration for Genapol ® X-060), and instead use oleyl alcohol polyglycol ether, and arrive at the instantly claimed invention. The prior art suspension concentrate composition rendered obvious by the combined teachings of Shao and Martelletti differed from the instantly claimed invention in that the ethoxylated fatty alcohols are Genapol ® X-060 (tridecyl polyethylene glycol ether, isotridecyl alcohol polyglycol ether with 6 ethylene oxide (EO)) instead of oleyl alcohol polyglycol ether. However, Bristow teaches it has been found that polyethers having at least 16 polyoxyethylene moieties provide advantageous adhesion of a pesticidally active formulation to seeds being treated, and exemplifies these effects using oleyl alcohol polyglycol ether in a composition for treatment of seeds. The ordinarily skilled artisan would have been motivated to swap these alcohol polyglycol ethers in order to provide improved adhesive ability when applying the resulting aqueous suspension composition to plant seeds for nematicidal applications. The ordinarily skilled artisan would have a reasonable expectation of success making this modification because both Genapol ® X-060 and oleyl alcohol polyglycol ether are polyethers, and both are known as appropriate adjuvants in compositions for agricultural applications, particularly in formulation of water-based suspensions.
Claims 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over CN-111990405-A (Shao, Y. et al) published 11/27/2020 (cited, with machine translation, in PTO-892) in view of WO-2020245088-A1 (Martelletti, A. et al) published 12/10/2020 (cited in PTO-892; utilizing corresponding US patent application as English translation), as applied to claims 1-4 and 12-15 above, and further in view of WO 2012/130823 A1 (Sowa, C. et al) published 04/10/2012 (cited in PTO-892).
The teachings of Shao and Martelletti, as they pertain to instant claims 1-4 and 12-15, are addressed supra. To reiterate, Shao teaches a finite range of concentrations for cyclobutrifluram in a suspension composition (67-335 g/L) with which the ordinarily skilled artisan can perform routine optimization. Additionally, Martelletti teaches that dyes, such as inorganic pigments, can be used in the adjuvant composition ([0077]).
The collective teachings differ from the instantly claimed invention in that they fail to teach the composition further comprises 20 to 120 g/L of a pigment, as recited in claim 7. Furthermore, the collective teachings fail to teach that the composition comprises 150-250 g/L cyclobutrifluram, along with 40 to 100 g/L pigment, as recited in instant claim 8.
Sowa teaches aqueous suspension concentrates comprising pesticidal active compounds (Abstract). Sowa teaches suitable colorants in the aqueous suspension concentrate are pigments of low water solubility and water-soluble dyes, and teaches the amounts of colorants usually does not exceed 20% by weight of the formulation, preferably from 0.1 to 15% by weight of a formulation (p. 32 lines 21-30).
It would have been prima facie obvious, before the effective filing date of the instantly claimed invention, for a person having ordinary skill in the art to incorporate a pigment into the aqueous suspension concentrate rendered obvious by the combined teachings of Shao and Martelletti, at the concentration taught by Sowa, and arrive at the instantly claimed invention. It is reiterated that the examiner has converted 10% by weight to 25% by weight of the adjuvant combination of Martelletti to be anywhere between 100-250 g/L (equivalent to 10-25% w/w). Based on this conversion, the ordinarily skilled artisan would be motivated to include pigment as well into the adjuvant combination of Martelletti, prior to incorporation into the suspension concentrate composition with the nematicidal actives of Shao, at 0.1-15% by weight of the formulation, which converts to 1-150 g/L of pigment in the resulting combination. The ordinarily skilled artisan would have been motivated to do so in order to provide color to the resulting aqueous concentrate composition, similar to the color of aqueous concentrate composition shown by Sowa. The ordinarily skilled artisan would have a reasonable expectation of success incorporating pigment into the adjuvant combination used in the resulting aqueous suspension concentrate composition because Martelletti teaches this is an appropriate adjuvant to include in the adjuvant combination, and Sowa teaches a similar aqueous suspension concentrate also appropriately incorporating pigment. Sowa’s taught concentration range for pigment overlaps, and thus renders obvious, the claimed amount range for pigment recited in instant claims 7 and 8. Additionally, "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05 (I) and (II) for discussions on overlapping ranges and optimization within prior art conditions through routine experimentation.
Regarding the composition comprising 150 to 250 g/L of cyclobutrifluram, it would have been prima facie obvious for a person having ordinary skill in the art, before the effective filing date of the instantly claimed invention, to perform routine optimization on the amount of cyclobutrifluram in the agricultural composition combining Shao’s fluopyram and cyclobutrifluram with the adjuvants of Martelletti, for the purpose of optimizing nematicidal activity of the resulting composition, and arrive at the instantly claimed concentration range for cyclobutrifluram. Shao exemplifies the use of a 5:1 ratio of fluopyram to cyclobutrifluram in a 400 g/L suspension for nematicidal activity. Shao establishes that the amounts of fluopyram and cyclobutrifluram in the suspension are results-effective variables, with the observable result being the nematicidal activity against nematodes. Shao also teaches that the ratio of fluopyram to cyclobutrifluram can be anywhere from 5:1 to 1:5. When in a 400 g/L nematicidal suspension, this is equivalent to a range of roughly 67-335 g/L for both fluopyram and cyclobutrifluram, depending on the ratios between the two. Thus, Shao teaches a finite range of concentrations for cyclobutrifluram in a suspension composition (67-335 g/L) with which the ordinarily skilled artisan can perform routine optimization with a reasonable expectation of success, in order to optimize the nematicidal activity when combining the two ingredients with the adjuvants of Martelletti. Shao’s taught concentration range for cyclobutrifluram overlaps, and thus renders obvious, the claimed amount range for cyclobutrifluram recited in instant claim 2. Additionally, "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05 (I) and (II) for discussions on overlapping ranges and optimization within prior art conditions through routine experimentation.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over CN-111990405-A (Shao, Y. et al) published 11/27/2020 (cited, with machine translation, in PTO-892) in view of WO-2020245088-A1 (Martelletti, A. et al) published 12/10/2020 (cited in PTO-892; utilizing corresponding US patent application as English translation), as applied to claims 1-4 and 12-15 above, and further in view of US 2009/0186767 A1 (Arbogast, S. et al) published 07/23/2009 (cited in PTO-892), WO 2014131337 A1 (Bristow, T.) published 09/04/2014 (cited in IDS), and WO 2012/130823 A1 (Sowa, C. et al) published 04/10/2012 (cited in PTO-892).
The teachings of Shao and Martelletti, as they pertain to instant claims 1-4 and 12-15, are addressed supra. To reiterate, the collective teachings render obvious the concentrations for vegetable oil and ethoxylated fatty alcohol being between 75-125 g/L and 60-110 g/L, respectively. Shao also teaches a finite range of concentrations for cyclobutrifluram in a suspension composition (67-335 g/L) with which the ordinarily skilled artisan can perform routine optimization on the amount of cyclobutrifluram. Additionally, Martelletti teaches that dyes, such as inorganic pigments, can be used in its adjuvant composition ([0077]).
The collective teachings differ from the instantly claimed invention in that they fail to teach the ethoxylated fatty alcohol is an oleyl alcohol polyglycol ether, and the vegetable oil is soybean oil. Furthermore, the collective teachings fail to teach that the composition comprises 150-250 g/L cyclobutrifluram, along with 40 to 100 g/L pigment.
Arbogast teaches methods for applying bio-derived surfactants to crops and other plants or to the soil used for such plants in order to reduce the need to apply environmentally unfriendly pesticides substances (Abstract). Arbogast teaches that, in spite of the biobased compounds being relatively mild and non-toxic with respect to humans, and in spite of past teachings that might suggest such compounds would not be effective, a series of experiments have confirmed that such bio-derived surfactants can be used against a variety of pests, including parasitic nematodes, root weevils (e.g., Diaprepes abbreviatus), etc ([0022]). Arbogast teaches the bio-derived surfactants comprise surfactants obtained by esterification of vegetable lipids, in particular, from soybean oil and castor oil ([0066]). Arbogast teaches ethoxylated soybean oils and ethoxylated castor oils for use as the bio-derived surfactants ([0061]).
Bristow teaches there is a need for an improved agrochemical formulation for the treatment of seeds; it would be advantageous if formulations had a viscosity such that application of the formulation to seeds was made easier and quicker and the resultant coating on the seeds could be more even while maintaining the adhesion of the formulation to the seeds and without reducing the efficacy of the active ingredients (p. 2 lines 22-28). It has been found that polyethers having at least 16 polyoxyethylene moieties provide advantageous adhesion of a pesticidally active formulation to seeds being treated, without resulting in a significant increase in the viscosity of the formulation and without reducing the efficacy of the active ingredient (p. 4 lines 15-18). Bristow teaches preferred polyethers are polyethers of oleyl alcohol (p. 11 lines 24-29). Bristow exemplifies the use of oleyl alcohol polyglycol ether as adhesion promoter in an aqueous suspension composition, wherein the adhesion level after spraying the composition on dry bean seeds was 88% compared to a similar composition without the oleyl alcohol polyglycol ether only maintaining an adhesion level of 35% (claim 17; p. 22-23 Example 4).
Sowa teaches aqueous suspension concentrates comprising pesticidal active compounds (Abstract). Sowa teaches suitable colorants in the aqueous suspension concentrate are pigments of low water solubility and water-soluble dyes, and teaches the amount of colorants usually does not exceed 20% by weight of the formulation, preferably from 0.1 to 15% by weight of a formulation (p. 32 lines 21-30).
It would have been prima facie obvious, before the effective filing date of the claimed invention, for a person having ordinary skill in the art to replace the ethoxylated castor oil (Lucramul ® CO 30) in the resulting concentrate composition rendered obvious by the combined teachings of Shao and Martelletti (keeping the concentration for Lucramul ® CO 30 rendered obvious by the collective teachings), and instead use ethoxylated soybean oil, and arrive at the instantly claimed invention. Per MPEP 2143 I(B), it is prima facie obvious to simply substitute one known element for another to yield predictable results. The prior art suspension concentrate composition rendered obvious by the combined teachings of Shao and Martelletti differed from the instantly claimed invention in that the vegetable oil is castor oil, not soybean oil. However, Arbogast teaches these vegetable oils to be interchangeable, when ethoxylated, for the purpose of agricultural applications, and teaches that both can be helpful against pests including nematodes. The ordinarily skilled artisan could have substituted the ethoxylated castor oil in the concentrate composition with ethoxylated soybean oil, and the substitution would have predictably resulted in a comparable nematocidal concentrate composition for application to plants based on the fact that these are both ethoxylated vegetable oil surfactants applicable in agricultural settings, particularly nematocidal compositions.
It would have been prima facie obvious, before the effective filing date of the claimed invention, for a person having ordinary skill in the art to replace the Genapol ® X-060 (ethoxylated fatty alcohols) in the resulting concentrate composition rendered obvious by the combined teachings of Shao and Martelletti (keeping the concentration for Genapol ® X-060 rendered obvious by the collective teachings), and instead use oleyl alcohol polyglycol ether, and arrive at the instantly claimed invention. The prior art suspension concentrate composition rendered obvious by the combined teachings of Shao and Martelletti differed from the instantly claimed invention in that the ethoxylated fatty alcohols are Genapol ® X-060 (tridecyl polyethylene glycol ether, isotridecyl alcohol polyglycol ether with 6 ethylene oxide (EO)) instead of oleyl alcohol polyglycol ether. However, Bristow teaches it has been found that polyethers having at least 16 polyoxyethylene moieties provide advantageous adhesion of a pesticidally active formulation to seeds being treated, and exemplifies these effects using oleyl alcohol polyglycol ether in a composition for treatment of seeds. The ordinarily skilled artisan would have been motivated to swap these polyglycol ethers in order to provide improved adhesive ability when applying the resulting aqueous suspension composition to plant seeds for nematicidal applications. The ordinarily skilled artisan would have a reasonable expectation of success making this modification because both Genapol ® X-060 and oleyl alcohol polyglycol ether are polyethers, and both are known as appropriate adjuvants in compositions for agricultural applications, particularly in formulation of water-based suspensions.
It would have been prima facie obvious, before the effective filing date of the instantly claimed invention, for a person having ordinary skill in the art to incorporate a pigment into the aqueous suspension concentrate rendered obvious by the combined teachings of Shao and Martelletti, at the concentration taught by Sowa, and arrive at the instantly claimed invention. It is reiterated that the examiner has converted 10% by weight to 25% by weight of the adjuvant combination of Martelletti to be anywhere between 100-250 g/L (equivalent to 10-25% w/w). Based on this conversion, the ordinarily skilled artisan would be motivated to include pigment as well into the adjuvant combination of Martelletti, prior to incorporation into the suspension concentrate composition with the nematicidal actives of Shao, at 0.1-15% by weight of the formulation, which converts to 1-150 g/L of pigment in the resulting combination. The ordinarily skilled artisan would have been motivated to do so in order to provide color to the resulting aqueous concentrate composition, similar to the color of aqueous concentrate composition shown by Sowa. The ordinarily skilled artisan would have a reasonable expectation of success incorporating pigment into the adjuvant combination used in the resulting aqueous suspension concentrate composition because Martelletti teaches this is an appropriate adjuvant to include in the adjuvant combination, and Sowa teaches a similar aqueous suspension concentrate also appropriately incorporating pigment. Sowa’s taught concentration range for pigment, in combination with the conversions between % w/w and g/L taught by Martelletti, overlaps, and thus renders obvious, the claimed amount range for pigment recited in instant claim 9. Additionally, "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05 (I) and (II) for discussions on overlapping ranges and optimization within prior art conditions through routine experimentation.
Regarding the composition comprising 150 to 250 g/L of cyclobutrifluram, it would have been prima facie obvious for a person having ordinary skill in the art, before the effective filing date of the instantly claimed invention, to perform routine optimization on the amount of cyclobutrifluram in the agricultural composition combining Shao’s fluopyram and cyclobutrifluram with the adjuvants of Martelletti, for the purpose of optimizing nematicidal activity of the resulting composition, and arrive at the instantly claimed concentration range for cyclobutrifluram. Shao exemplifies the use of a 5:1 ratio of fluopyram to cyclobutrifluram in a 400 g/L suspension for nematicidal activity. Shao establishes that the amounts of fluopyram and cyclobutrifluram in the suspension are results-effective variables, with the observable result being the nematicidal activity against nematodes. Shao also teaches that the ratio of fluopyram to cyclobutrifluram can be anywhere from 5:1 to 1:5. When in a 400 g/L nematicidal suspension, this is equivalent to a range of roughly 67-335 g/L for both fluopyram and cyclobutrifluram, depending on the ratios between the two. Thus, Shao teaches a finite range of concentrations for cyclobutrifluram in a suspension composition (67-335 g/L) with which the ordinarily skilled artisan can perform routine optimization with a reasonable expectation of success, in order to optimize the nematicidal activity when combining the two ingredients with the adjuvants of Martelletti. Shao’s taught concentration range for cyclobutrifluram overlaps, and thus renders obvious, the claimed amount range for cyclobutrifluram recited in instant claim 2. Additionally, "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05 (I) and (II) for discussions on overlapping ranges and optimization within prior art conditions through routine experimentation.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over CN-111990405-A (Shao, Y. et al) published 11/27/2020 (cited, with machine translation, in PTO-892) in view of WO-2020245088-A1 (Martelletti, A. et al) published 12/10/2020 (cited in PTO-892; utilizing corresponding US patent application as English translation), as applied to claims 1-4 and 12-15 above, and further in view of WO 2011030806 A1 (Okada, Y) published 03/17/2011 (cited in PTO-892) and Anon.; “Toximul 8315” 01 June 2015; pp. 1-2 https:/www.stepan.com/content/dam/stepan-dot-com/webdan/website-product-documents/product-bulletins/surfactants/TOXIMUL8315.pdf (cited in IDS, hereinafter “Toximul 8315”).
The teachings of Shao and Martelletti, as they pertain to instant claims 1-4 and 12-15, are addressed supra. To reiterate, Martelletti teaches the adjuvant combination (TEHP premix V) contains: as wetting agents (component (d)), Genapol ® LRO paste at 62.5 g/L (6.25 % w/w) and Genapol ® X-060 at 75 g/L (7.5 % w/w); and as emulsifier (component (c)), Lucramul ® CO 30 at 62.5 g/L (6.25 % w/w) ([0099] Table 1). Martelletti teaches that Genapol ® X-060 is the tradename for tridecyl polyethylene glycol ether, isotridecyl alcohol polyglycol ether with 6 ethylene oxide (EO), and Lucramul ® CO 30 is ethoxylated castor oil ([0097]-[0098]). Martelletti also teaches that components (c) and/or (d) are present in the adjuvant combination at 10% by weight to 25% by weight based on the total weight of the adjuvant combination (claim 5). It is reiterated that the examiner has converted 10% by weight to 25% by weight of the adjuvant combination of Martelletti to be anywhere between 100-250 g/L (equivalent to 10-25% w/w).
Martelletti teaches that the wetting agent (d) is selected from a group consisting of, among other components, sulfosuccinates and lignosulfonates, as well as mixtures of wetting agents (claim 8).
The combined teachings differ from the instantly claimed invention in that they fail to teach further inclusion of 1 to 30 gram / liter of a sulfosuccinate wetting agent, 5 to 50 gram / liter of a butyl polyalkylene oxide block copolymer, and 2.5 to 35 gram / liter of a sodium lignosulfonate.
Okada teaches a pesticidal aqueous suspension concentrate comprising clothianidin, a surfactant, a polyacrylic acid salt, a lignosulfonic acid salt, and a polysaccharidic polymeric material which resists caking and is useful as a pesticide formulation (Abstract). Okada teaches specific examples of sodium lignosulfonate appropriate for use in the aqueous suspension concentrate (p. 7 line 16 through p. 8 line 9).
Toximul 8315 teaches that Toximul® 8315 is a butyl polyalkylene oxide block copolymer used as a wetting agent in suspension concentrate formulations (p. 1).
It would have been prima facie obvious, before the effective filing date of the instantly claimed invention, for the ordinarily skilled artisan to (1) add the wetting agents sulfosuccinate, sodium lignosulfonate, and Toximul 8315 (butyl polyalkylene oxide block copolymer) to the aqueous suspension concentrate composition rendered obvious by the combined teachings of Shao and Martelletti, and (2) perform routine optimization on each added wetting agent, within the bounds for amount of wetting agent component (d) taught by Martelletti (10-25% w/w, or 100-250 g/L, based on the adjuvant combination) and arrive at the instantly claimed invention. Regarding modification (1), per MPEP 2143 I(A), it is prima facie obvious to combine prior art elements according to known methods to yield predictable results. Martelletti teach that lignosulfonates and sulfosuccinates are wetting agents suitable to include in component (d) of the adjuvant combination, and Toximul 8315 teaches another wetting agent applicable for suspension concentrates. One of ordinary skill in the art could have combined these wetting agents with the already-present wetting agents making up component (d) of Martelletti’s adjuvant combination, prior to incorporating of the resulting adjuvant combination with Shao’s nematicidal actives fluopyram and cyclobutrifluram into an aqueous suspension concentrate, and would have expected each wetting agent to continue to function as a wetting agent in the resulting aqueous suspension concentrate due to the fact that each ingredient is applicable in formulations of suspension concentrates, and each ingredient is known in the art to be wetting agents in suspension compositions.
Regarding modification (2), it would have been prima facie obvious for a person having ordinary skill in the art, before the effective filing date of the instantly claimed invention, to perform routine optimization on the amounts of newly-added wetting agents, upon combination with Shao’s nematicides into an aqueous suspension concentrate formulation, for the purpose of optimizing the wettability of the resulting suspension concentrate composition, and arrive at the instantly claimed concentrations for sulfosuccinate, sodium lignosulfonate, and butyl polyalkylene oxide block copolymer. Martelletti establishes the purpose of all ingredients in component (d) to be wetting agents in the adjuvant combination. Martelletti establishes that the amounts of wetting agent in an agricultural suspension are results-effective variables, with the observable results being improved wettability when combined in an agricultural suspension composition. Martelletti also teaches that the amounts for wetting agent(s) can vary, but teaches all wetting agents comprising component (d) should be present in the adjuvant combination at 10% by weight to 25% by weight of the adjuvant combination. Based on Martelletti’s teachings that 75 g/L of Genapol ® X-060 is equivalent to 7.5 % w/w of the adjuvant combination, the Examiner has calculated Martelletti’s finite concentration range for wetting agents in component (d) (10-25% w/w) to be anywhere between 100-250 g/L of the adjuvant combination. Because component (d) is already occupied by 137 g/L of Genapol ® LRO paste and Genapol ® X-060 (at 62.5 g/L (6.25 % w/w) and 75 g/L (7.5 % w/w) respectively), this leaves a maximum of 113 g/L for the combination of sulfosuccinate, sodium lignosulfonate, and butyl polyalkylene oxide block copolymer wetting agents. Thus, Martelletti teaches a finite range of concentrations for wetting agent in an agricultural composition with which the ordinarily skilled artisan can perform routine optimization with a reasonable expectation of success, in order to optimize the wettability of the suspension concentrate composition upon combination of Martelletti’s adjuvant combination with Shao’s nematicidal actives. Furthermore, "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05 (I) and (II) for discussions on optimization within prior art conditions through routine experimentation.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over CN-111990405-A (Shao, Y. et al) published 11/27/2020 (cited, with machine translation, in PTO-892) in view of WO-2020245088-A1 (Martelletti, A. et al) published 12/10/2020 (cited in PTO-892; utilizing corresponding US patent application as English translation), as applied to claims 1-4 and 12-15 above, and further in view of AU 2018282387 A1 (Pentland, P. et al) published 07/11/2019 (cited in PTO-892).
The teachings of Shao and Martelletti, as they pertain to instant claims 1-4 and 12-15, are addressed supra. To reiterate, formulation of an aqueous suspension concentrate composition containing Shao’s nematicidal ingredients and Martelletti’s adjuvant combination is rendered obvious by the combined teachings of Shao and Martelletti. Additionally, it is reiterated that Shao teaches, when forming dosage forms such as suspensions, the ordinarily skilled artisan will know that, in addition to using the pesticide containing nematicidal active ingredients, a variety of adjuvants are needed, such as one or more of a dispersion medium, a dispersant, etc ([0015])
The combined teachings differ from the instantly claimed invention in that they fail to teach the aqueous suspension concentrate composition further comprises 1 to 55 g/L of an acrylic graft copolymer.
Pentland teaches aqueous suspension concentrate compositions of suspended particles of pesticides which includes graft copolymers ([0011]). Pentland teaches Tersperse 2500 dispersant is a 33% solution of an acrylic graft copolymer in water/propylene glycol ([0067]). Pentland exemplifies the use of Tersperse 2500 as dispersant in an aqueous suspension composition containing suspended pesticides, which is quite stable with respect to particle homogeneity ([0064]-[0065]; Table 1 “F3”; ]). Pentland teaches the composition comprises a surfactant comprising an acrylic graft copolymer, present in the range 3 g/L to 60 g/L (weight of the acrylic graft copolymer based on the total weight of the composition), preferably 3g/L to 30 g/L and still more preferably in the range 5g/L to 15 g/L ([0042]).
It would have been prima facie obvious for a person having ordinary skill in the art, before the effective filing date of the claimed invention, to add the dispersant Tersperse 2500 (an acrylic graft copolymer), within Pentland’s taught concentration range for acrylic graft copolymer in an aqueous suspension composition (most preferably 5 g/L to 15 g/L), to the aqueous suspension composition rendered obvious by the combined teachings of Shao and Martelletti, and arrive at the instantly claimed invention. The ordinarily skilled artisan would have been motivated to do so because Pentland demonstrates a stable suspension containing Tersperse 2500 (acrylic graft copolymer) as dispersant, and the ordinarily skilled artisan would seek to incorporate this dispersant into the suspension composition rendered obvious by Shao and Martelletti in order to harness the benefits of including the dispersant shown by Pentland. The ordinarily skilled artisan would have a reasonable expectation of success adding dispersant to the aqueous suspension composition because Shao teaches dispersants to be appropriate adjuvants to include in agricultural suspensions containing nematicidal actives, and Pentland teaches that acrylic graft copolymers are effective dispersants when used at the concentration between 5 g/L to 15 g/L in agricultural aqueous suspension compositions.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 7, 10, 11-12 and 15 of copending Application No. 18/550,876 in view of WO-2020245088-A1 (Martelletti, A. et al) published 12/10/2020 (cited in PTO-892; utilizing corresponding US patent application as English translation), US 2009/0186767 A1 (Arbogast, S. et al) published 07/23/2009 (cited in PTO-892), and WO 2014131337 A1 (Bristow, T.) published 09/04/2014 (cited in IDS).
App’876 claims an aqueous suspension concentrate composition comprising (i) cyclobutrifluram as active ingredient; (ii) 1 to 30 gram / liter of a sulfosuccinate wetting agent; (iii) 5 to 50 gram / liter of a butyl polyalkylene oxide block copolymer; and (iv) 2.5 to 35 gram / liter of a sodium lignosulfonate (claim 1). The identities and amounts for (ii), (iii) and (iv) read upon the components (v), (vi) and (vii) of instant claim 10. App’876 claims the composition further comprises (v) 1 to 55 gram / liter of an acrylic graft copolymer (claim 2); this reads on component (viii) in instant claim 11. App’876 claims the composition comprises 100 to 600 gram / liter of cyclobutrifluram (claim 3). This amount range for cyclobutrifluram encompasses, and renders obvious, the amounts for cyclobutrifluram recited in instant claims 2, 8 and 9.
App’876 claims the composition further comprises from 5 to 120 gram / liter of a pigment (claim 7). This amount range for pigment encompasses, and renders obvious, the amounts for pigment recited in instant claims 7 and 8. App’876 claims the composition further comprises one or more adjuvants or carriers (claim 10).
App’876 claims a method of reducing or preventing nematicidal or fungicidal damage in a plant comprising applying a composition according to claim 1 to the seed of a plant (claim 11). App’876 claims the method wherein the plant is selected from barley, brassica head and stem vegetables, bean, carrot, chickpea, corn, cotton, cowpea, curcurbits, dry beans, field peas, garden beans, garlic, lentils, lettuce, millet, oat, onion, peanut, peas, potato, rice, rye, sorghum, soybean, sugarbeet, sunflower, triticale and wheat (claim 12). App’876 claims the method wherein the composition = comprises a further pesticidally active ingredient (claim 15). These collective claims read on instant the method of instant claims 12-15.
App’876 differs from the instantly claimed invention in that it fails to also claim the composition includes 25-125 g/L of a vegetable oil, and 25-125 g/L of an ethoxylated fatty alcohol, as recited in instant claims 1 and 8, and more narrowly 75-126 g/L of vegetable oil and 60-110 g/L of ethoxylated fatty alcohol, as recited in instant claim 4. Additionally, App’876 fails to claim more vegetable oil than ethoxylated fatty alcohol in the composition, as recited in instant claim 3. App’876 fails to claim that the vegetable oil is soybean oil and the ethoxylated fatty alcohol is an oleyl alcohol polyglycol ether, as recited in instant claims 5 and 6, respectively. Therefore, these ingredients and amounts as recited in instant claim 9 are not claimed by App’876.
Martelletti teaches adjuvants in agrochemical formulations can have various functions, such as, for example, improving application of sprays, increasing effectiveness of agrochemical active ingredients, and reducing drift of active ingredients ([0006]). Martelletti teaches an adjuvant combination for improving bioavailability of an active ingredient in an herbicidal composition ([0004]). Martelletti teaches the adjuvant combination contains (a) tris(2-ethylhexyl)phosphate (TEHP), (b) at least one alkyl ether phosphate ammonium salt, (c) at least one emulsifier, and (d) at least one wetting agent ([0014]). Martelletti teaches the adjuvant combination (TEHP premix V) contains: as wetting agents (component (d)), Genapol ® LRO paste at 62.5 g/L (6.25 % w/w) and Genapol ® X-060 at 75 g/L (7.5 % w/w); as alkyl ether phosphate ammonium salt (component (b)), Geronol ® CF/AR-E at 300 g/L (30 % w/w); as emulsifier (component (c)), Lucramul ® CO 30 at 62.5 g/L (6.25 % w/w); and as TEHP (component (a)), Disflamoll ® TOF at 500 g/L (50 % w/w) ([0099] Table 1). Martelletti teaches that Genapol ® X-060 is the tradename for tridecyl polyethylene glycol ether, isotridecyl alcohol polyglycol ether with 6 ethylene oxide (EO), and Lucramul ® CO 30 is ethoxylated castor oil ([0097]-[0098]). A combination of tridecyl polyethylene glycol ether and isotridecyl alcohol polyglycol ether with 6 ethylene oxide (EO) reads as a species of ethoxylated fatty alcohol, and ethoxylated castor oil reads as a species of vegetable oil. Thus, Martelletti teaches inclusion of ethoxylated fatty alcohol (in the form of Genapol ® X-060) at a concentration of 75 g/L as wetting agent in the adjuvant combination, and vegetable oil (in the form of Lucramul ® CO 30) at a concentration of 62.5 g/L as emulsifier in the adjuvant combination.
Martelletti also teaches that components (c) and/or (d) are present in the adjuvant combination at 10% by weight to 25% by weight, optionally at 12% by weight to 23% by weight, and optionally 12% by weight to 22% by weight, based on the total weight of the adjuvant combination (claim 5).
Arbogast teaches methods for applying bio-derived surfactants to crops and other plants or to the soil used for such plants in order to reduce the need to apply environmentally unfriendly pesticides substances (Abstract). Arbogast teaches that, in spite of the biobased compounds being relatively mild and non-toxic with respect to humans, and in spite of past teachings that might suggest such compounds would not be effective, a series of experiments have confirmed that such bio-derived surfactants can be used against a variety of pests, including parasitic nematodes, root weevils (e.g., Diaprepes abbreviatus), etc ([0022]). Arbogast teaches the bio-derived surfactants comprise surfactants obtained by esterification of vegetable lipids, in particular, from soybean oil and castor oil ([0066]). Arbogast teaches ethoxylated soybean oils and ethoxylated castor oils for use as the bio-derived surfactants ([0061]).
Bristow teaches there is a need for an improved agrochemical formulation for the treatment of seeds; it would be advantageous if formulations had a viscosity such that application of the formulation to seeds was made easier and quicker and the resultant coating on the seeds could be more even while maintaining the adhesion of the formulation to the seeds and without reducing the efficacy of the active ingredients (p. 2 lines 22-28). It has been found that polyethers having at least 16 polyoxyethylene moieties provide advantageous adhesion of a pesticidally active formulation to seeds being treated, without resulting in a significant increase in the viscosity of the formulation and without reducing the efficacy of the active ingredient (p. 4 lines 15-18). Bristow teaches preferred polyethers are polyethers of oleyl alcohol (p. 11 lines 24-29). Bristow exemplifies the use of oleyl alcohol polyglycol ether as adhesion promoter in an aqueous suspension composition, wherein the adhesion level after spraying the composition on dry bean seeds was 88% compared to a similar composition without the oleyl alcohol polyglycol ether only maintaining an adhesion level of 35% (claim 17; p. 22-23 Example 4).
Regarding instant claim 1 and 8’s recitation of 25-125 g/L of a vegetable oil and 25-125 g/L of an ethoxylated fatty alcohol in the composition, it would have been prima facie obvious for a person having ordinary skill in the art, before the effective filing date of the instantly claimed invention, to add the adjuvant combination of Martelletti, with Martelletti’s taught concentrations for components including the Genapol ® X-060 (ethoxylated fatty alcohols) and Lucramul ® CO 30 (vegetable oil), to App’876’s aqueous suspension concentrate composition and arrive at the instantly claimed invention. The ordinarily skilled artisan would have been motivated to do so because App’876 claims the inclusion of one or more adjuvants in its composition; Martelletti provides a suitable adjuvant combination for agrochemical applications which, when combined with agricultural active, facilitates improved bioavailability of the agricultural active, and thus the cyclobutrifluram of App’876 would benefit from the adjuvant combination taught by Martelletti when formulated together in the aqueous suspension concentrate composition. The ordinarily skilled artisan would find a reasonable expectation of success based on the fact that App’876 claims the use of any adjuvant in the composition, and Martelletti teaches this combination of adjuvants to be suitable in agricultural applications.
Regarding instant claims 3 and 4 (wherein the composition comprises 75-125 g/L of vegetable oil, and 60-110 g/L of ethoxylated fatty alcohol, and the composition comprises more vegetable oil than ethoxylated fatty alcohol), it would have been prima facie obvious for a person having ordinary skill in the art, before the effective filing date of the instantly claimed invention, to perform routine optimization on the amounts of wetting agent and emulsifier adjuvants of Martelletti, upon addition to the aqueous suspension concentrate composition of App’876, for the purpose of optimizing the wettability and emulsion properties of the resulting suspension concentrate composition, and arrive at the instantly claimed amount limitations for vegetable oil and ethoxylated fatty alcohol. Martelletti establishes the purpose of ethoxylated fatty alcohol (in the form of Genapol ® X-060) is to be a wetting agent in the adjuvant combination, and the purpose of vegetable oil (in the form of Lucramul ® CO 30) is to be an emulsifier in the adjuvant combination. In other words, Martelletti establishes that the amounts of ethoxylated fatty alcohol and vegetable oil in a composition are results-effective variables, with the observable results being improved wettability and emulsion properties, respectively, when combined in an agricultural suspension composition. Martelletti also teaches that the amounts for wetting agent(s) and emulsifier can vary, but teaches both the wetting agent and emulsifier components are each present in the adjuvant combination at 10% by weight to 25% by weight of the adjuvant combination. Based on Martelletti’s teachings that 75 g/L of Genapol ® X-060 (ethoxylated fatty alcohol) is equivalent to 7.5 % w/w of the adjuvant combination, and 62.5 g/L of Lucramul ® CO 30 (vegetable oil) is equivalent to 6.25 % w/w of the adjuvant combination, the Examiner has calculated finite ranges for wetting agent and emulsifier to be anywhere between 100-250 g/L (equivalent to 10-25% w/w). Thus, Martelletti teaches a finite range of concentrations for wetting agent and emulsifier in an agricultural composition with which the ordinarily skilled artisan can perform routine optimization with a reasonable expectation of success, in order to optimize the wettability and emulsion properties upon addition of the adjuvant combination into the composition of App’876. Martelletti’s taught concentration ranges for wetting agent and emulsifier overlap, and thus render obvious, the claimed amount ranges for ethoxylated fatty alcohol and vegetable oil recited in instant claim 4. Furthermore, because it is prima facie obvious to perform routine optimization of the amounts of wetting agent and the emulsifier each within the ranges of 100-250 g/L (10-25% w/w), there are obviously instances wherein more emulsifier than wetting agent can be present, for example when wetting agent (ethoxylated fatty alcohol) is present at 10% w/w (100 g/L) and emulsifier (vegetable oil) is present at 12% w/w (120 g/L). Finally, "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05 (I) and (II) for discussions on overlapping ranges and optimization within prior art conditions through routine experimentation.
Regarding instant claim 5, it would have been prima facie obvious, before the effective filing date of the claimed invention, for a person having ordinary skill in the art to replace the ethoxylated castor oil (Lucramul ® CO 30) in the resulting concentrate composition rendered obvious by the combined teachings of App’876 and Martelletti (keeping Martelletti’s taught concentration for Lucramul ® CO 30), and instead use ethoxylated soybean oil, and arrive at the instantly claimed invention. Per MPEP 2143 I(B), it is prima facie obvious to simply substitute one known element for another to yield predictable results. The suspension concentrate composition rendered obvious by the combined teachings of App’876 and Martelletti differs from the instantly claimed invention in that the vegetable oil is castor oil, not soybean oil. However, Arbogast teaches these vegetable oils to be interchangeable when ethoxylated for the purpose of agricultural applications, and teaches that both can be helpful against pests including nematodes. The ordinarily skilled artisan could have substituted the ethoxylated castor oil in the concentrate composition with ethoxylated soybean oil, and the substitution would have predictably resulted in a comparable nematocidal concentrate composition for application to plants based on the fact that these are both ethoxylated vegetable oil surfactants applicable in agricultural settings, particularly nematocidal compositions.
Regarding instant claim 6, it would have been prima facie obvious, before the effective filing date of the claimed invention, for a person having ordinary skill in the art to replace the Genapol ® X-060 (ethoxylated fatty alcohols) in the resulting concentrate composition rendered obvious by the combined teachings of App’876 and Martelletti (keeping Martelletti’s taught concentration for Genapol ® X-060), and instead use oleyl alcohol polyglycol ether, and arrive at the instantly claimed invention. The suspension concentrate composition rendered obvious by the combined teachings of App’876and Martelletti differed from the instantly claimed invention in that the ethoxylated fatty alcohols are Genapol ® X-060 (tridecyl polyethylene glycol ether, isotridecyl alcohol polyglycol ether with 6 ethylene oxide (EO)) instead of oleyl alcohol polyglycol ether. However, Bristow teaches it has been found that polyethers having at least 16 polyoxyethylene moieties provide advantageous adhesion of a pesticidally active formulation to seeds being treated, and exemplifies these effects using oleyl alcohol polyglycol ether in a composition for treatment of seeds. The ordinarily skilled artisan would have been motivated to swap these alcohol polyglycol ethers in order to provide improved adhesive ability when applying the resulting aqueous suspension composition to plant seeds for nematicidal applications. The ordinarily skilled artisan would have a reasonable expectation of success making this modification because both Genapol ® X-060 and oleyl alcohol polyglycol ether are polyethers, and both are known as appropriate adjuvants in compositions for agricultural applications, particularly in formulation of water-based suspensions.
Because all of the ingredients and concentration ranges of instant claim 9 are either explicitly taught, or rendered obvious by, the combination of App’876 and the teachings of Martelletti, Arbogast and Bristow, claim 9 is thus rendered obvious.
This is a provisional nonstatutory double patenting rejection.
Conclusion
No claims are allowed.
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/SOPHIA MARIE TAYLOR/Examiner, Art Unit 1616
/Mina Haghighatian/Primary Examiner, Art Unit 1616
[1][1] As pointed out by the court in In re Angstadt, 537 F.2d 498 at 504 (CCPA 1976), the key word is “undue”, not “experimentation”.
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