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 .
Summary
Claims 1, 34-38, 73-77, and 104-107 are pending in this office action. Claims 2-33, 39-72, and 78-103 cancelled. All pending claims are under examination in this application.
Priority
The current application was filed on October 2, 2023 is a 371 of PCT/IL2022/050347 filed March 31, 2022. The current application claims foreign priority to IN202131015784, IN202111028811, and IN20213105786 filed April 2, 2021, June 26, 2021 and April 2, 2021, respectively.
Information Disclosure Statement
Receipt of the Information Disclosure Statement filed on October 2, 2023 is acknowledged. A signed copy of the document is attached to this office action.
Claim Objections
Claims 1, 34-38, 73-77, and 104-107 are objected to because of the following informalities:
Claim 1 states “selected from the groups B.1 to B.10:”. However, only A.1 through A.26 is listed. Additionally, claim 1 needs the following words capitalized Tau Fluvalinate, Spinosad, and Spinetoram. All other pesticides are lowercase. Pyrrole within A.18 is lowercase.
Dependent claims 34-38, 73-77, and 104-107 fail to cure the defects within claim 1.
Claim 37 spinosyns, arylisoxazolines, meta-diamides, ryanodine, pyrrole, and phenylpyrazole are lowercase.
Claim 38 Spinosad and Spinetoram are capitalized. All other pesticides are lowercase.
Claim 77 diacylhydrazine, ryanodine, phenylpyrazole, and meta-diamides are lowercase.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 34-38, 73-77, and 104-107 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 has the phrase “…selected from the group comprising…” within each subsection of A.1 through A.26. The transition word “comprising” – rather than “consisting of” renders the claim indefinite according to MPEP 2173.05(h): A Markush grouping is a closed group of alternatives, i.e., the selection is made from the group “consisting of” (rather than “comprising” or "including") the alternative members. Abbott Labs., 334 F.3d at 1280, 67 USPQ2d at 1196. If a Markush grouping requires a material selected from an open list of alternatives (e.g., selected from the group "comprising" or "consisting essentially of" the recited alternatives), the claim should generally be rejected under 35 U.S.C. 112(b) as indefinite because it is unclear what other alternatives are intended to be encompassed by the claim. If a claim is intended to encompass combinations or mixtures of the alternatives set forth in the Markush grouping, the claim may include qualifying language preceding the recited alternatives (such as "at least one member" selected from the group), or within the list of alternatives (such as "or mixtures thereof"). Id. at 1281. See also MPEP § 2111.03. The correct phrase is “selected from the group consisting of”.
Dependent claims 34-38, 73-77, and 104-107 fail to cure the defect with claim 1.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 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.
[The Examiner is going to present two separate 102(a)(1) rejections.]
Claims 1, 34-38, 73-74, 76-77, and 104 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by (CN108271801A).
CN ‘801 is the closest prior art to the present invention as it teaches insecticidal compositions containing novaluron (see title). Furthermore, CN ‘801, discloses that the invention provides an insecticidal composition containing novaluron. The insecticidal composition is characterized by being prepared from an active component A and an active component B, wherein the A is the novaluron and the B is one or a combination of more than one of efficient cyfluthrin, bacillus thuringiensis, benfuracarb, lufenuron, cyromazine, chromafenozide, methoxyfenozide, azadirachtin, fosthiazate, pyrazine fipronil, pyridine fipronil, kappa-bifenthrin, kappa-tefluthrin, lepimectin, cyenopyrafen and cyflumetofen; the insecticidal composition further comprises auxiliary agents capable of being used for processing pesticide preparations; the components are prepared into a convectional pesticide preparation which is applied to prevent and control plant insects (see abstract).
Regarding instant claim 1, CN ‘801 teaches a pesticidal mixture. The necessary citations of CN ‘801 that pertain to instant claim 1 are presented in Table I.
Table I
Instant Claim 1
CN ‘801 Citations
A pesticidal mixture comprising, as active compounds:
CN ‘801 discloses pesticidal mixtures (see claim 1).
i) a compound I, which is novaluron of formula (I)
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and ii) at least one active compound II selected from the groups A.1 to A.26:
A.1. Diacylhydrazine insecticides, which are ecdysone agonists selected from the group comprising chromafenozide, halofenozide, methoxyfenozide and tebufenozide.
CN ‘801 discloses mixtures comprising novaluron (see paragraph [0011] in combination with lambda-cyhalothrin, Bacillus thuringiensis, carbofuran, lufenuron, cyromazine, cyclofenozide, methoxyfenozide, azadirachtin, thiazophos, pyrazinamide, pyridaben, kappabifenthrin,
kappa-tefluthrin, lepimectin, cyprodinil, and diflubenzuron (see paragraph [0011]).
[For the purposes of brevity only A.1 is listed due to the fact that CN ’801 meets the instant claim limitation.]
Regarding instant claim 34, CN ‘801 teaches wherein the mixture exhibits synergistic effects. CN ‘801 discloses that the mixed composition has a good synergistic effect, and its application effect is significantly better than the sum of the theoretical effects of single agents, that is, it has a super additive effect and can better control the occurrence and damage of pests (see paragraph [0022]).
Regarding instant claim 35, CN ‘801 teaches wherein novaluron and at least one active compound II, as defined in instant claim 1, are applied jointly or in a succession. CN ’801 discloses the pesticidal mixture is jointly applied (see paragraph [0011] and [0058]).
Regarding instant claims 36-38, CN ‘801 teaches wherein the weight ratio of novaluron and at least one active compound II, as defined in claim 1, is from 1:100 to 100:1 (see paragraph [0016]).
Regarding instant claims 73-74, CN ‘801 teaches a pesticidal composition comprising: (i) the mixture of instant claim 1; and (ii) an agriculturally acceptable carrier and at least one surfactant, solid diluent, liquid diluent, or a combination thereof. CN ‘801 discloses an agriculturally acceptable carrier and at least one surfactant, solid diluent, liquid diluent, or a combination thereof (see paragraphs [0017-0018]).
Regarding instant claims 76-77, CN ‘801 teaches a method for controlling insects comprising contacting the insect or their food supply, habitat, breeding grounds or their locus with an effective amount of instant claim 1 so as to thereby control insects. CN ‘801 discloses a method for controlling insects comprising contacting the insect or their food supply, habitat, breeding grounds or their locus with an effective amount of instant claim 1 so as to thereby control insects (see paragraph [0012]). Also, a specific example of a pest that can be controlled by the novaluron and methoxyfenozide pesticidal mixture includes S. littoralis.
Regarding instant claim 104, CN ‘801 teaches a method for protecting plants from attack or infestation by insects comprising contacting the plant, or the soil or water in which the plant is growing, with an effective amount of the mixture of instant claim 1 so as to thereby protect plants from attack or infestation by insects. Please see the discussion and citations within instant claim 1. CN ‘801 discloses a method for protecting plants from attack or infestation by insects comprising contacting the plant, or the soil or water in which the plant is growing, with an effective amount of the mixture of instant claim 1 so as to thereby protect plants from attack or infestation by insects (see paragraph [0013-0014] and abstract).
Claims 1 and 105-107 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nave et al. (WO2019/012377A1).
Nave et al. teach mixtures comprising an insecticide and a nitrification inhibitor such as 2-(3,4-dimethyl-1h-pyrazol-1-yl)succinic acid (DMPSA) or 3,4-dimethyl pyrazolium glycolate (DMPG) (see title). Additionally, Nave et al. disclose that the present invention relates to pesticidal mixtures comprising as active components at least one specific nitrification inhibitor (compound I) and at least one insecticide (compound II); to a method for controlling insects, acarids or nematodes, or for improving the nitrification-inhibiting effect, or for increasing the health of a plant using mixtures of at least one compound I and at least one compound II; to the use of mixtures comprising compounds I and compounds II for controlling insects, acarids or nematodes or to increasing the health of a plant; to agrochemical compositions comprising these mixtures; and to plant propagation material, comprising these mixtures or these agrochemical compositions (see abstract).
Regarding instant claim 1, Nave et al. teach a pesticidal mixture. The necessary citations of Nave et al. that pertain to instant claim 1 are presented in Table I.
Table I
Instant Claim 1
Nave et al. Citations
A pesticidal mixture comprising, as active compounds:
Nave et al. disclose pesticidal mixtures (see abstract).
i) a compound I, which is novaluron of formula (I)
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and ii) at least one active compound II selected from the groups A.1 to A.26:
A.1. Diacylhydrazine insecticides, which are ecdysone agonists selected from the group comprising chromafenozide, halofenozide, methoxyfenozide and tebufenozide.
Nave et al. disclose a pesticidal mixture containing novaluron (see page 8, line 21 within Nave et al.) and methoxyfenozide (see page 8, line 25 within Nave et al.).
[For the purposes of brevity only A.1 is listed due to the fact that CN ’801 meets the instant claim limitation.]
Regarding instant claim 105, Nave et al. teach a method for enhancing knock-down activity and/or prolonged control comprising contacting the plant, or the soil or water in which the plant is growing, with an effective amount of the mixture of instant claim 1 so as to thereby enhance knock-down activity and/or prolonged control. Please see the discussion and citations within instant claim 1 (within Nave et al.). Nave et al. disclose that it was therefore also an object of the present invention to provide mixtures which solve the problems of reducing the dosage rate, and / or enhancing the spectrum of activity, and / or combining knock-down activity with prolonged control, and/ or improving resistance management and/or promoting (increasing) the health of plants, and / or facilitating application on the plants or on the soil (see page 15, lines 19-23; also see claims 12-15; both within Nave et al.).
Regarding instant claim 106, Nave et al. teach a method for enhancing plant development comprising applying to the plant, a locus of the plant and/or propagation material of the plant an effective amount of the mixture of instant claim 1 so as to thereby enhance plant development. Please see the discussion and citations within instant claim 1 (within Nave et al.). Nave et al. disclose that for foliar applications, improved plant vigor can be characterized, among others, by the following improved properties of the plant: improved vitality of the plant; and/or improved plant growth; and/or improved plant development (see page 125, lines 17-19; also see claims 12-15; both within Nave et al.).
Regarding instant claim 107, Nave et al. teach a method for regulating plant growth comprising applying to the plant, a locus of the plant and/or propagation material of the plant an effective amount of the mixture of instant claim 1 so as to thereby regulate plant growth. Please see the discussion and citations within instant claims 1 and 105-106 (within Nave et al.).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or non-obviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1 and 75 are rejected under 35 U.S.C. 103 as being unpatentable over CN ‘801 in view of Nave et al.
The teachings of CN ‘801 and Nave et al. were presented above within the 35 U.S.C. §102 section. Furthermore, the claim limitations of instant claim 1 are taught in full by both references.
Regarding instant claim 75, CN ‘801 and Nave et al. teach a method of reducing the total amount of insecticidal active compounds necessary for controlling unwanted pests by a) applying novaluron at an application rate from about 25% to about 75% of the recommended application rate and b) applying at least one active compound II, as defined in claim 1. Both CN ‘801 and Nave et al. that the mixed composition has a good synergistic effect, and its application effect is significantly better than the sum of the theoretical effects of single agents, that is, it has a super additive effect and can better control the occurrence and damage of pests (see paragraph [0022] within CN ‘801 and page 115, lines 6, 10, and 14 within Nave et al.). Neither reference lists an explicit numerical percentage amount for the reduction of the overall application rate. However, collection of this experimental data would be within the scope of a skilled artisan (POSITA; person of ordinary skill in the art) under routine conditions. The reduction of novaluron applied would be a function of the insect being controlled by the pesticidal mixture.
Analogous Art
The CN ‘801 and Nave et al. references are directed to the same field of endeavor as the instant claims, that is, a pesticidal mixture as disclosed within instant claim 1.
Obviousness Analysis
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the pesticidal mixture comprising novaluron and methoxyfenozide disclosed by CN ‘801, using the teachings of Nave et al., in order to arrive at the subject matter of the instant claims.
The CN ‘801 and Nave et al. references all have considerable overlap in the preparation of synergistic pesticidal mixtures within the agrochemical arts. In this instance, CN ‘801 supplies a template for a majority of the instant claim limitations, while Nave et al. supplies specific examples of methods employing the pesticidal mixture. All references are directed to the preparation of synergistic pesticidal mixtures within the agrochemical arts and therefore constitute analogous art under MPEP §2141.01(a). A POSITA would have reasonably consulted the two references when seeking to prepare a pesticidal mixtures.
Starting with CN ‘801, the skilled person only had to try the necessary claim limitations disclosed by Nave et al. The combination of CN ‘801 and Nave et al. would allow one to arrive at the present application without employing inventive skill. This combination of the synergistic pesticidal mixture comprising novaluron and methoxyfenozide taught by CN ‘801 along with the use of the necessary claim limitations taught by Nave et al. would allow a research and development scientist (POSITA) to develop the invention taught in the instant application. It would have only required routine experimentation to modify the synergistic pesticidal mixture comprising novaluron and methoxyfenozide disclosed by CN ‘801 with the use of the necessary claim limitations taught by Nave et al. Incorporating the disclosure of CN ‘801 into the specific examples of methods employing the pesticidal mixture presented by Nave et al. represents a predictable use of prior art elements according to their established functions, consistent with MPEP §2143 and KSR.
Furthermore, the additional claim limitations taught by Nave et al. would have been viewed by a POSITA as routine design optimizations or known modifications to treat plants through the method for enhancing cation uptake. Implementing these features in CN ‘801’s method for specific examples of methods employing the synergistic pesticidal mixture would not require more than ordinary skill or routine experimentation.
Accordingly, the combination of CN ‘801, supplemented by Nave et al. provides all the elements of the claimed invention. The resulting synergistic pesticidal mixture comprising novaluron and methoxyfenozide constitutes no more than the predictable outcome of combining familiar prior art components, and therefore the claimed subject matter would have been obvious to a POSITA prior to the effective filing date of the invention.
Conclusion
No claims are allowed.
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/JOHN W LIPPERT III/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615