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 .
Detailed Action
Previous Rejections
Applicants' arguments, filed 01/08/26 have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
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.
Claims 1-4, 6-13 and 15-27 are rejected under 35 U.S.C. 103 as being unpatentable over Reinhard et al. (WO 2018/234478 A1) in view of Sikuljak et al. (WO 2016/166252 A1).
Reinhard et al. discloses pesticidal compositions comprising a pyrazole carboxamide compound (A) and isocycloseram (see cpd. B1b) in a weight ratio of 1000:1 to 1:1000 (see claim 4; preferred mixtures A-4 to A-6). The composition may be used in form of a bait formulation. The bait formulation is a liquid, a solid or a semi-solid preparation, such as a gel. It has to be sufficiently attractive to insects (such as ants, termites, wasps, flies, mosquitoes, crickets or cockroaches) to incite them to eat it. The attractiveness is modulated using feeding stimulants, flavors and sex pheromones. The bait compositions comprise 0.0001 to 15 wt.%, such as 0.001 to 5 wt.-%, of the active compound. This amount provides guidance to one of ordinary skill in the art to manipulate the amount for insecticidal bait purposes. The bait may comprise bittering agents (p. 25, lines 11-19 and lines 40-44). Since the document by Reinhard defines specific mixtures comprising isocycloseram, there is only to be made a single selection in the list of formulation types, namely the selection of using the mixture in form of a bait. Reinhard teaches use of protein, see page 8, lines 14-15. Reinhard teaches use of sugar-based surfactants and sugar on page 21, lines 20, 25 and page 39, line 43. Reinhard teaches use of yeast, page 35, lines 13. Solid carriers include salts, see page 21, lines 1-9. Reinhard teaches use of potassium sorbate, see page 35, lines 20-21.
Reinhard does not teach use of polysaccharide or a vegetable.
Sikuljak discloses methods for combatting insect pests using broflanilide (cpd. 1) or the active compound desmethyl-broflanilide (cpd. la). The compounds can be formulated as bait (claims 1 and 16). The bait formulation is a liquid, a solid or a semi- solid preparation, such as a gel. It has to be sufficiently attractive to insects (such as ants, termites, wasps, flies, crickets, bed bugs or cockroaches) to incite them to eat it. The attractiveness is modulated using feeding stimulants, food stimulants and sex pheromones. Suitable components encompass polysaccharides, proteins and decaying parts of plants or insects. The bait compositions comprise 0.001 to 15 wt.-%, such as 0.001 to 5 wt.-%, of the active compound. The bait may comprise bittering agents (p. 17, lines 9-11; p. 34, lines 24; p. 35, lines 28). Sikuljak does not disclose bait compositions comprising isocycloseram.
It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to have utilized bait material made up of protein, carbohydrate or vegetable and use it with the composition of Rheinhard et al. One of ordinary skill would be motivated to do so because Sikuljak discloses methods for combatting insect pests by attracting with baits and the attractiveness is modulated with feeding stimulants including protein, polysaccharide and plant and insect decays. Since the references make obvious the claimed insect pest bait composition, the loading rate and the average return would necessarily be present because property cannot be separated from the chemistry of the composition.
Applicant argues that the combination of refences do not show obviousness for the claimed invention.
These arguments are not persuasive. As discussed in the rejections above, Rheinhard teaches pesticidal composition which can be used as insect bait composition comprising isocycloseram and Sikuljak provides motivation to use protein, carbohydrate or vegetable to be used in bait formulation.
Applicant argues that the data in the Specification as filed illustrates "that insect baits which comprise isocyloseram as an insecticidal active substance are particularly suitable for controlling insect pests and insect populations including social or communal insect pests." Example 4 (Specification at 13-14) demonstrates that isocycloseram-containing baits, achieve higher loading rates, lower return rates, and superior long-term control of Atta bisphaerica compared to the commercial standard (Mirex-S). Specifically, isocycloseram baits had an average loading rate of 97.03%, a return rate below 7% (versus 10-15% for Mirex-S), regardless of the dosage and concentration of active ingredient. The control efficiency after opening the nests in the excavation of the anthills showed that the treatments isocyloseram - 0.2% (10 and 12 g) and 0.3% (6, 10 and 12 g) have control higher than 84%, outperforming Mirex-S.
These arguments are not persuasive to overcome the rejections of record. Applicant has not provided comparison with the closest prior art which teaches insecticidal bait formulation comprising isocycloseram. No comparative experiments have been presented, and it is unclear whether there is any difference between the inventive formulation and the known isocycloseram comprising formulation to be used as insect bait formulation as taught by the prior art. The tests used in a comparison must be made under identical conditions except for the novel features of the invention. See MPEP 716.02(e). And as such a comparison has not been presented, the argument are not found persuasive.
Action is final
THIS ACTION IS MADE FINAL. 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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SNIGDHA MAEWALL whose telephone number is (571)272-6197. The examiner can normally be reached Monday thru Friday; 8:30 AM to 5PM.
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/SNIGDHA MAEWALL/Primary Examiner, Art Unit 1612
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