DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Claims
Claims 59 and 61-73 are pending.
Claim 66, lines 8-9, the term “Thysanoptera” is recited twice. Applicant may consider deleting one of the recitations.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 21 September 2023 was filed before the mailing of an Office action. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
The information disclosure statement (IDS) submitted on 12 January 2026 was filed after the mailing date of the non-final Office action on 11 September 2025. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Withdrawn Rejections
Rejections and/or objections not reiterated from the previous Office Action are hereby withdrawn.
Declaration under 37 C.F.R. §1.132
The declaration under 37 CFR 1.132 filed 12 January 2026 is insufficient to overcome the rejection of claims 59 and 61-73 based upon Du et al. (CN 102726450 A) as set forth in the last Office action because: the declaration states that Formulations A-C according to the present invention (including built-in adjuvant) showed higher spreading than formulations 11 (without mineral oil and adjuvant) and 12 (with mineral oil, without adjuvant). Formulations 1-8 demonstrate that adjuvants cannot simply be added to a spirotetramat SC composition without causing instability. Formulations A-C, however, show that incorporating the adjuvant through the claimed emulsification system results in improved pesticide formulations which possess high efficacy i.e., increase of foliar penetration, through distribution (spreadability), as well other factors such as droplet size, adhesion, wetting and uptake and simplifies the use of agrochemical products for the end-user. The declaration further states that surprisingly, it was found that the addition of an adjuvant to formulation 12 (resulting in formulations A-C) overcomes the reduction in spreadability caused by the oil and improves the efficacy.
The examiner respectfully argues that Du et al. disclose dissolving the emulsifier in the oil phase. Du et al. state that the emulsifier includes nonylphenol polyoxyethylene ether and fatty alcohol polyoxyethylene ether, which are the same compounds as the instantly claimed adjuvants. Therefore, Du et al. disclose dissolving the instantly claimed adjuvants in the oil phase forming a single-phase solution. Therefore, the results obtained by the instant declaration would not be surprising in view of the formulations according to Du et al.
Claim Objections
Claims 68 and 72-73 are objected to because of the following informalities: Claim 68, ln. 4, the recitation of “is of about” should be amended to “is about”; and claims 72-73, ln. 2, a comma is needed between “starch” and “lactose”. Appropriate correction is required.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 59 and 61-73 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Du et al. (CN 102726450 A).
Du et al. disclose suspension emulsion comprising the following components in percentage by weight: 1-40% of spirotetramat, 0.5-20% of vegetable oil (or mineral oil or paraffin oil), 3-15% of wetting dispersant, 1-10% of emulsifier, 2-6% of anti-freezing agent, 0.1-3% of thickener, 1-10% of stabilizer, 0.1-2% of preservative, 0.01-2% of defoamer and up to 100% of water (Abstract).
Du et al. disclose a composition comprising 5% spirotetramat, 5% mineral oil, 10% wetting and dispersing agent sodium dodecylbenzenesulfonate, 5% emulsifier EO-PO block copolymer, antifreeze propylene glycol 4%, thickener hydroxyethyl cellulose 0.1%, preservative sodium benzoate 0.5%, silicone defoamer 0.1%, stabilizer linseed oil 2%, add deionized water to 100% (Example 1).
Du et al. disclose a composition comprising spirotetramat 10%, methylated vegetable oil 3%, wetting and dispersing agent sodium lignosulfonate 10%, emulsifier nonylphenol polyoxyethylene ether (NP series) 5%, antifreeze glycol 5%, thickener xanthan gum 0.2%, preservative benzoic acid 0.5%, silicone defoamer 0.2%, stabilizer epoxy soybean oil 5%, add deionized water to 100% (Example 2).
Du et al. disclose a composition comprising spirotetramat 5%, mineral oil 1%, wetting and dispersing agent dodecyl polyoxyethylene ether phosphate 15%, emulsifier fatty alcohol polyoxyethylene ether (AEO Series) 3%, antifreeze glycerin 4%, thickener hydroxyethyl cellulose 0.1%, preservative sodium diacetate 0.5%, silicone defoamer 0.1%, stabilizer citric acid 3%, plus deionization water to 100% (Example 3).
Du et al. disclose that spirotetramat is highly efficient and broad-spectrum, which can effectively control various kinds of piercing-sucking mouthparts pests, such as aphids, thrips, wood lice, mealybugs, mealworms and scale insects. The main crops that can be used include cotton, soybeans, citrus, tropical fruit trees, nuts, grapes, hops, potatoes and vegetables ([0006]). Du et al. disclose after diluting the suspoemulsion by 1000-6000 times, foliar spray is applied to apple tree, pear tree, peach tree, apricot tree, plum tree and other fruit trees such as pear borer, pear borer, peach borer (peach borer) fruit moth), white borer, brown borer, peach borer and cotton bollworm have good control effects, and are safe and have no harm to crops ([0030]).
Response to Arguments
Applicant's arguments filed 12 January 2026 have been fully considered but they are not persuasive. Applicant argues that Du does not teach or describe a composition (or method of making one) in which wherein (a) the solubility of the spirotetramat in the oil phase is not more than 0.1% by weight based on the total amount of the spirotetramat; and (b) the at least one adjuvant is soluble in the emulsification system forming a single-phase solution. Du does not disclose any limitation on the solubility of spirotetramat in the oil phase, certainly not the requirement that it be not more than 0.1% by weight, nor does it teach the use of a built-in adjuvant that is dissolved within the emulsification system to form a single-phase solution. In Du, oils such as mineral, vegetable and paraffin are included to improve deposition on the plant leaves, whereas the present invention achieves enhanced biological activity by employing a specific emulsification system designed to dissolve the adjuvant.
The examiner respectfully argues that Du et al. disclose compositions containing all the components as instantly claimed. The solubility of spirotetramat in a specific oil is dependent on the oil. Du et al. disclose the same oil as instantly claimed, i.e. mineral oil. Therefore, the solubility of spirotetramat in the mineral oil will inherently be within the scope of the instant claims. Similarly, the solubility of the adjuvant in the emulsification system is dependent on the adjuvant and the contents of the emulsification system. Du et al. disclose the same emulsifier and adjuvants as instantly claimed in the same oil. Therefore, the adjuvant according to Du et al., i.e. nonylphenol polyoxyethylene ether and fatty alcohol polyoxyethylene ether, will inherently have the same solubility in the emulsification system as instantly claimed. Below is a side-by-side comparison of the instant claims and the corresponding limitations disclosed by Du et al.
Instant Claims
CN 102726450 A
Spirotetramat
Spirotetramat
Oil (i.e., mineral oil and/or canola oil)
Mineral oil and/or vegetable oil
Emulsifier (i.e., dioctyl sodium sulfosuccinate and/or polyoxyethylene alkyl ether phosphate)
Wetting and dispersing agent: dodecyl polyoxyethylene ether phosphate
Adjuvant (i.e., alkyl ester of fatty acids and/or alcohol alkoxylate)
Emulsifier: nonylphenol polyoxyethylene ether or fatty alcohol polyoxyethylene ether
Carrier
Water
Applicant further argues that Du does not teach or describe an adjuvant that is soluble in the emulsification system forming a single-phase solution. Indeed, Du does not include any adjuvant in the oil-emulsifier mixture.
The examiner respectfully argues that Du et al. disclose dissolving the emulsifier in the oil phase. Du et al. state that the emulsifier includes nonylphenol polyoxyethylene ether and fatty alcohol polyoxyethylene ether, which are the same compounds as the instantly claimed adjuvants. Therefore, Du et al. disclose dissolving the instantly claimed adjuvants in the oil phase forming a single-phase solution.
Applicant further argues that the Declaration describes how formulations according to the present claims (i.e., Formulations A-C) surprisingly show increased spreadability than corresponding formulations lacking the built-in adjuvant (i.e., Formulations 11 and 12; see Figure 2 of the Declaration).
The examiner’s discussion of the declaration is provided above and repeated herein.
Conclusion
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 (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nathan W Schlientz whose telephone number is (571)272-9924. The examiner can normally be reached 10:00 AM to 6:00 PM, Monday through Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue Liu can be reached at (571) 272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/N.W.S/Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616
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