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 .
Status of Claims
Preliminary amendment filed on 06/16/2026 is acknowledged.
Claims 10 and 15-17 remain cancelled. Claims 3, 13, 18 and 21-22 are amended.
Claims 1-9, 11-14, and 18-22 are pending and being examined on the merits herein.
Priority
This instant application 18560244, filed on 11/10/2023, is a 371 of PCT/IL2022/050483, filed on 05/10/2022, which claims domestic benefit of 63/186,219, 05/10/2021.
Information Disclosure Statement
The information disclosure statement (IDS), filed on 06/16/2026, is in compliance with the
provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the
Examiner.
Withdrawn Objections/Rejections
All previous claim Objection(s) / Rejection(s) as set forth in the previous Office action (mailed 12/16/2025) that are not repeated and/or maintained in the instant Office action are withdrawn, in light of applicant’s amendment and remark filed on 06/16/2026.
Claim Objections
Claims 3 and 18 are objected to because of the following informalities:
Claims 3 and 18 use (a), (b), etc. to indicate the components, while same letters already used to indicate the components of the dispersant of claim 1. In order to put the claim in better form, it is suggested that claims 3 and 18 use a different set of numbering to differentiate (e.g., (i), (ii), etc.).
Appropriate correction is required.
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.
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.
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, 3, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Aulisa (US20130331267, 12/12/2013).
Aulisa throughout the reference teaches pesticide compositions comprising a high concentration of a water-soluble herbicide in the form of aqueous suspension concentrate (e.g., Abstract; [0043]; [0059], etc.).
Regarding instant claims 1, 3, and 12, Aulisa exemplifies herbicides in the aqueous suspension concentrate composition including herbicides (e.g. Claim 5), such as herbicide propanil (e.g., [0025], [0026]) (corresponding to anilide herbicide in instant claims 1 and 12), wetting dispersing agent (as dispersant) as an acrylic-methacrylic copolymer grafted with polyethylene oxide side chains (as a specific type of polyalkylene oxide when the alkyl group is ethyl, being grafted on a polymeric backbone of methacrylic backbone, corresponding to claim 1a) and claim 3 as interpreted, and a block copolymer of ethylene oxide and propylene oxide (e.g., Claim 18) (same as polyoxyethylene-polyoxypropylene block copolymer, corresponding to claim 1b)).
Aulisa does not teach all the components as instantly claimed in one embodiment. Aulisa does not expressly teach propanil herbicide is an anilide herbicide.
It would have been prima facie obvious for one person with ordinary skills of the art prior to filing date to select the components taught by Aulisa to arrive at current invention. It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). Especially, Aulisa specifies that the total composition can comprise at least one wetting-dispersing agent (e.g., Claim 1; [0009]; [0014]), and teaches many dispersing agents (e.g., [0048-0049]) with exemplifies combination of dispersing agents (e.g., Claims 19 and 23; [0049]; [0064]), an artisan in the field would have motivation to combine dispersing agents for reasonable expectation of success. The claimed invention is a simple combination of reagents known to be obvious materials that all already taught in prior art and discussed above. The idea for combining them flows logically from them having been individually taught in the prior art. In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
Even though Aulisa does not expressly teach herbicide propanil is an anilide herbicide,
MPEP 2112.01.II states "[p]roducts of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id. (Applicant argued that the claimed composition was a pressure sensitive adhesive containing a tacky polymer while the product of the reference was hard and abrasion resistant. "The Board correctly found that the virtual identity of monomers and procedures sufficed to support a prima facie case of unpatentability of Spada’s polymer latexes for lack of novelty."). For this instance, since prior art teaches the same herbicide propanil, being an anilide herbicide is inherent property of the chemical agent.
Claims 2, 4-6, 14, 18-21 are rejected under 35 U.S.C. 103 as being unpatentable over Aulisa (US20130331267, 12/12/2013), in view of EA201001575 (04/29/2011, translation relied upon below; hereafter “EA575”; in record of 12/16/2025) and Lindner et al. (WO2016182991, 11/17/2016, in record of 12/16/2025).
Regarding instant claims 2, 6, 14, 18, and 21, Aulisa throughout the reference teaches aqueous suspension concentrate composition (e.g., Abstract; [0043]; [0059], etc.) that can include herbicides (e.g., Claim 5), e.g., anilide herbicide propanil (e.g., [0025], [0026]) (corresponding to anilide herbicide instants claims 2, 14 and 21), dispersants including an acrylic-methacrylic copolymer grafted with polyethylene oxide side chains (corresponding to graft polymer containing polyalkylene oxide moieties grafted on a polymeric backbone as methacrylic acid in instant claims 2 a), 14 a) and claim 18 as interpreted), a sodium salt of an alkylnaphthalene sulfonate condensate (dispersant having an SO3 group, corresponding to instant claims 2 b) and 14 b)), a polyoxyethylene-polyoxypropylene block copolymer (e.g., Claim 18) (corresponding to instant claim 6).
Aulisa does not teach a polyalkoxylate of mono-, di-, or tristryrylphenol as recited in instant claims 2 c), 5, and 14 c). Aulisa does not teach the dispersant having an SO3 group is anionic as recited in instant claim 2 b) and also does not teach it is naphthaleneformaldehyde condensate sulfonate or salt thereof as recited in instant claim 4. Aulisa does not teach a combination of urea and propane-1,2-diol as recited in instant claims 14 and 19, pH between 7 and 14 as recited in instant claim 20.
EA575 throughout the reference teaches emulsifiable concentrate formulation that can include active substances as herbicides (e.g., Pg. 20, bottom; Pg. 21, 2nd paragraph), emulsifiers such as alkoxylated fats or oils, copolymers of ethylene oxide/propylene oxide (Pg. 5, bottom paragraph), non-ionic emulsifiers including polyoxy-C2-C3-alkylene C5-C22 alkyl ethers (Pg. 6, top line), polyoxyethylene-polyoxypropylene block copolymers (Pg. 6, end of 1st paragraph), in particular polyethoxylates of mono-, di-, and tristyrylphenol ethoxylates (Pg. 6, middle of 1st paragraph), which corresponds to polyethoxylate species in instant claims 2 c), 5 and 14 c)).
Lindner throughout the reference teaches agrochemical emulsion concentrates that can comprise herbicide (e.g., Pg. 16, line 16-22), oil soluble active propanil (Pg. 18, lines 20-21), dispersants such as sulphonated naphthalene formadehyde condensates (same as naphthaleneformadehyde sulphonate condensate, corresponding to instant claim 4), acrylic copolymers such as the comb copolymer having capped polyethylene glycol side chains on a polyarylic backbone, emulsifiers such as ethoxylates (pg. 24, bottom).
Lindner teaches the composition can combine solvent and/or humectant, e.g., especially propylene glycol (same as propane-1,2-diol) (Pg.22, Lines 20-23) and salts such as urea (Pg. 22, Line 26), and Lindner also exemplifies propylene glycol in the formulation (e.g., Pg. 26, example at top paragraph), corresponding to the components in instant claims 14 and 19.
Lindner species that the concentrates may be diluted for use, for example in a spray formulation (e.g., Pg. 21, Lines 35-37), and the spray formulations will typically have a pH with the range from moderately acidic to moderately alkaline between about 3 to about 10, and particular near neutral, e.g., about 5 to 8 (e.g., Pg. 22, Lines 15-17), overlapping with pH between 7-14 in instant claim 20.
It would have been prima facie obvious for a person with ordinary skills in the art to incorporate teachings of EA575 and Lindner to select polyethoxylates of mono-, di-, and tristyrylphenol ethoxylates, and sulphonated naphthalene formadehyde condensate, urea, propane-1,2-diol into the composition taught by Aulisa to arrive at current invention. Because Aulisa teaches general suitable components and indicates that the composition constitutes good homogeneity and shows little or no change in viscosity, syneresis or sedimentation (e.g., Claim 20; [0065]), and the compositions share common categories of ingredients for the same intended use, while EA575 and Lindner specify some components complementing the Aulisa composition, it would have motivated artisans in the field to combine these components as a routine experimentation. It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
Although prior art does not expressly teach the dispersant sulphonated naphthalene formadehyde condensate (naphthaleneformadehyde sulphonate condensate) as anionic, MPEP 2112.01.II states "[p]roducts of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id. (Applicant argued that the claimed composition was a pressure sensitive adhesive containing a tacky polymer while the product of the reference was hard and abrasion resistant. "The Board correctly found that the virtual identity of monomers and procedures sufficed to support a prima facie case of unpatentability of Spada’s polymer latexes for lack of novelty."). For this instance, since prior art teaches the same compound, the anionic property is inherent of the chemical agent.
MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). For this instance, the pH range overlaps with that in prior art. “It would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Aulisa (US20130331267, 12/12/2013) as applied to claims 1, 3, and 12 above, in view of EA201001575 (04/29/2011, translation relied upon below; hereafter “EA575”; in record of 12/16/2025).
Aulisa throughout the reference teaches aqueous suspension concentrate (e.g., Abstract; [0043]; [0059], etc.) comprising herbicides (e.g. Claim 5), such as anilide herbicide propanil (e.g., [0025], [0026]), dispersants including an acrylic-methacrylic copolymer grafted with polyethylene oxide side chains (as a specific type of polyalkylene oxide when the alkyl group is ethyl and being grafted on the polymeric backbone methacrylic), and a block copolymer of polyoxyethylene-polyoxypropylene (e.g., Claim 18), as discussed above regarding instant claims 1, 3, and 12 above and incorporated herein.
Aulisa does not teach the polyoxyethylene-polyoxypropylene block copolymer or an alkyl ether thereof is a polyoxythylene-polyoxypropylene block copolymer butyl ether as recited in instant claim 7.
EA575 teaches emulsifiable concentrate formulation that can include active substances as herbicides (e.g., Pg. 20, bottom; Pg. 21, 2nd paragraph), and non-ionic polymeric emulsifier including an ethylene oxide propylene oxide block copolymer and its alkyl ether, such as butyl ether, methyl ether, propyl ether, or mixtures thereof (Pg. 8, bottom paragraph), since ethylene oxide propylene oxide block copolymer butyl ether is the same as polyoxyethylene-polyoxypropylene block copolymer butyl ether, which reads into instant claim 7.
It would have been prima facie obvious for a person with ordinary skills in the art to incorporate teachings of EA575 and select polyoxyethylene-polyoxypropylene block copolymer butyl ether into the composition taught by Aulisa to arrive at current invention. Because Aulisa teaches general suitable components including polyoxyethylene-polyoxypropylene block copolymer and indicates that the composition constitutes good homogeneity and shows little or no change in viscosity, syneresis or sedimentation, while EA575 specifies polyoxyethylene-polyoxypropylene block copolymer butyl ether as the specific nonionic polymeric emulsifier is suitable for the composition, it would have motivated artisans in the field to test and incorporate into the composition as a routine experimentation. It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Lindner et al. (WO2016182991, 11/17/2016, in record of 12/16/2025).
Lindner throughout the reference teaches agrochemical emulsion concentrates that can comprise herbicide (e.g., Pg. 16, line 16-22). Lindner teaches agrochemical emulsion-type concentrates and diluted concentrate formulations; in particular oil-in-water emulsion concentrates having an oil phase with oil soluble active, continuous water phase with an optional water soluble active (corresponding to aqueous concentrate formulation), with use of surfactant emulsifier to provide for stable emulsion concentrates over time and under varying storage temperatures (e.g., Abstract), which corresponds to aqueous suspension concentrate composition as known by a person with ordinary skills in the art.
Lindner teaches oil soluble active ingredient propanil (Pg. 18, lines 20-21). MPEP 2112.01.II states "[p]roducts of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id. (Applicant argued that the claimed composition was a pressure sensitive adhesive containing a tacky polymer while the product of the reference was hard and abrasion resistant. "The Board correctly found that the virtual identity of monomers and procedures sufficed to support a prima facie case of unpatentability of Spada’s polymer latexes for lack of novelty."). For this instance, since prior art teaches the same compound propanil as an anilide herbicide, prppanil taught by prior art constitutes its inherent property.
Lindner teaches the composition can combine solvent and/or humectant, e.g., especially propylene glycol (same as propane-1,2-diol) (Pg.22, Lines 20-23) and salts such as urea (Pg. 22, Line 26), and Lindner also exemplifies propylene glycol in the formulation (e.g., Pg. 26, example at top paragraph).
It would have been prima facie obvious for an artisan in the field to choose active herbicide and combine solvent propane-1,2-diol with urea to arrive at current invention. It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
Claims 9 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Aulisa (US20130331267, 12/12/2013) as applied to claims 1, 3, and 12 above, and in view of Lindner et al. (WO2016182991, 11/17/2016, in record of 12/16/2025).
Aulisa throughout the reference teaches aqueous suspension concentrate (e.g., Abstract; [0043]; [0059], etc.) comprising herbicides (e.g. Claim 5), such as anilide herbicide propanil (e.g., [0025], [0026]), dispersants including an acrylic-methacrylic copolymer grafted with polyethylene oxide side chains (as a specific type of polyalkylene oxide when the alkyl group is ethyl and being grafted on the polymeric backbone methacrylic), and a block copolymer of polyoxyethylene-polyoxypropylene (e.g., Claim 18), as discussed above regarding instant claims 1, 3, and 12 above and incorporated herein.
Aulisa does not teach urea and propane-1,2-diol as recited in instant claim 9, or pH between 7 and 14 as recited in instant claim 11.
Lindner teaches the herbicide composition can combine solvent and/or humectant, e.g., especially propylene glycol (same as propane-1,2-diol) (Pg.22, Lines 20-23) and salts such as urea (Pg. 22, Line 26), which read into instant claim 9.
Lindner species that the concentrates may be diluted for use, for example in a spray formulation (e.g., Pg. 21, Lines 35-37), and the spray formulations will typically have a pH with the range from moderately acidic to moderately alkaline between about 3 to about 10, and particular near neutral, e.g., about 5 to 8 (e.g., Pg. 22, Lines 15-17), overlapping with pH between 7 and 14 in instant claim 11.
It would have been prima facie obvious for an artisan in the field to choose active herbicide and combine solvent propane-1,2-diol with urea to arrive at current invention. It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). For this instance, the pH range overlaps with that in prior art. “It would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Aulisa (US20130331267, 12/12/2013) as applied to claims 1, 3, and 12 above, in view of Schneider et al. (US20120090055, 04/12/2012).
Aulisa throughout the reference teaches aqueous suspension concentrate (e.g., Abstract; [0043]; [0059], etc.) comprising herbicides (e.g. Claim 5), such as anilide herbicide propanil (e.g., [0025], [0026]), dispersants including an acrylic-methacrylic copolymer grafted with polyethylene oxide side chains (as a specific type of polyalkylene oxide when the alkyl group is ethyl and being grafted on the polymeric backbone methacrylic), and a block copolymer of polyoxyethylene-polyoxypropylene (e.g., Claim 18), as discussed above regarding instant claims 1, 3, and 12 above and incorporated herein.
Aulisa further teaches the average particle size for the water insoluble active ingredient is about 1-10 um, for some pesticides, average size is about 3-6 um (e.g., [0037]), and Aulisa specifies that the composition is stable at temperatures of greater than or equal to about 40 C for a period of at least 8 weeks (e.g., Claim 20) (corresponding to 8 weeks in 40 C, and D(90) particle size less than 27 um in instant claim 13). Aulisa indicates that the stable composition does not change homogeneous and viscosity after periods of storage time under different conditions (e.g., [0065]).
Aulisa does not teach the viscosity of the composition is less than 2500 cP as recited in instant claim 13.
Schneider throughout the reference teaches aqueous pesticide dispersion, wherein pesticide refers to at least one active substance selected from the group including herbicides [0025], comprising dispersants including sulfonated naphthalene and its derivatives with formaldehyde (e.g., [0093]), suitable surfactants including ethoxylated alkylphenols (e.g., [0094]), suitable block polymers of polyethylene oxide and polypropylene oxide [0095].
Schneider teaches the dispersion has a viscosity (true viscosity measured at 25° C. and a shear rate of 100 s-1) in the range of from 2 to 500 mPas, preferably from 5 to 100 mPas and in particular from 10 to 50 mPas [0091], wherein in 1 mPas is equal to 1 cP, therefore, the viscosity taught in Schneider is less than 2500 cP, which reads to viscosity in instant claim 13.
It would have been prima facie obvious for a person with ordinary skills in the art to incorporate Schneider’s teaching of viscosity into the aqueous suspension concentrate in Aulisa to arrive at current invention. Because it is well known in the field that for aqueous concentrates which would eventually be used for spraying, viscosity is important, while Schneider shows the suspension concentrate once it is diluted with water, it is capable of being sprayed onto grapevines using commercially available spraying apparatuses (e.g., [0132]). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). For this instance, the particle size and viscosity ranges overlap with those in prior art. “It would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Aulisa (US20130331267, 12/12/2013), in view of EA201001575 (04/29/2011, translation relied upon below; hereafter “EA575”; in record of 12/16/2025) and Lindner et al. (WO2016182991, 11/17/2016, in record of 12/16/2025) as applied to Claims 2, 4-6, 14, 18-21 above, further in view of Schneider et al. (US20120090055, 04/12/2012).
Combined teachings of Aulisa, EA575 and Lindner teach an aqueous suspension concentrate composition that can include herbicides, e.g., anilide herbicide propanil, dispersants including an acrylic-methacrylic copolymer grafted with polyethylene oxide side chains, an anionic dispersant having an SO3 group such as naphthaleneformaldehyde condensate sulfonate, and a polyalkoxylate of mono-, di-, or tristyrylphenol, as discussed above in great detail as applied to claims 2, 4-6, 14, 18-21 above and incorporated herein.
Aulisa further teaches the average particle size for the water insoluble active ingredient is about 1-10 um, for some pesticides, average size is about 3-6 um (e.g., [0037]), and Aulisa specifies that the composition is stable at temperatures of greater than or equal to about 40 C for a period of at least 8 weeks (e.g., Claim 20) (corresponding to 8 weeks in 40 C, and D(90) particle size less than 27 um in instant claim 22). Aulisa indicates that the stable composition does not change homogeneous and viscosity after periods of storage time under different conditions (e.g., [0065]).
Combined teachings of Aulisa, EA575 and Lindner do not teach viscosity of the composition as recited in instant claim 22.
Schneider throughout the reference teaches aqueous pesticide dispersion, wherein pesticide refers to at least one active substance selected from the group including herbicides [0025], comprising dispersants including sulfonated naphthalene and its derivatives with formaldehyde (e.g., [0093]), suitable surfactants including ethoxylated alkylphenols (e.g., [0094]), suitable block polymers of polyethylene oxide and polypropylene oxide [0095].
Schneider teaches the dispersion concentrate remains stable for four weeks at 50 C in storage (e.g., [0131]); and the diluted stable dispersion does not sediment even upon storage for three months (e.g., [0126]). Schneider teaches that the dispersion has a viscosity (true viscosity measured at 25° C. and a shear rate of 100 s-1) in the range of from 2 to 500 mPas, preferably from 5 to 100 mPas and in particular from 10 to 50 mPas [0091], wherein in 1 mPas is equal to 1 cP, therefore, the viscosity taught in Schneider is less than 2500 cP, which reads to viscosity in instant claim 22.
It would have been prima facie obvious for a person with ordinary skills in the art to incorporate Schneider’s teaching of viscosity into the aqueous suspension concentrate taught by Aulisa, EA575 and Lindner to arrive at current invention. Because it is well known in the field that for aqueous concentrates which would be eventually used for spraying, viscosity is important, while Schneider shows the suspension concentrate and its diluted dispersion with such viscosities both being super stable over time and at elevated temperature, especially the diluted dispersion is capable of being sprayed onto grapevines using commercially available spraying apparatuses (e.g., [0132]). The teaching of Schneider constituting obvious advantage and improvement with viscosity value to the compositions taught by Aulisa, EA575 and Lindner, it would have motivated artisans in the field to incorporate the viscosity and expect reasonable success. This renders obviousness as “use of known technique to improve similar
devices (methods, or products) in the same way” or as “applying a known technique to a known device
(method, or product) ready for improvement to yield predictable results”. See MPEP §2143. (I)(C) and
(I)(D).
MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). For this instance, the particle size and viscosity overlap with those in prior art. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The viscosity in Schneider is not measured after 8 weeks in 40 C, however, Schneider provides longer period of time at room temperature of storage stability, and four weeks at 50 C as higher temperature storage stability. It would have been prima facie obvious for one of ordinary skill in the art to optimize viscosity through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
Response to Arguments
Applicant’s remarks/arguments filed on 06/16/2026 have been fully considered.
35 U.S.C. 112 (b) Rejections
Applicant requests reconsideration and withdrawal of the rejections in view of the amendments and remarks.
The claim amendments have overcome part of the previous 35 U.S.C. 112(b) rejections.
Art Rejections
Applicant argues that Aulisa fails to teach the specific dispersant combination as instantly claimed, and the rejection of claims 1, 3, and 12 should be withdrawn.
Although Aulisa does not teach a specific embodiment having all the claimed elements, it must be remembered that “[w]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” KSR v. Teleflex, 127 S.Ct. 1727, 1740 (2007) (quoting Sakraida v. AG. Pro, 425 U.S. 273, 282 (1976)). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious,” the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR at 1741. The Court emphasized that “[a] person of ordinary skill is... a person of ordinary creativity, not an automaton.” Id. at 1742. Consistent with this reasoning, it would have been prima facie obvious to have selected various combinations of various disclosed dispersing ingredients from prior art Aulisa, to arrive at instant composition “yielding no more than one would expect from such an arrangement.” Moreover, as presented above in office action and copied below the most relevant paragraph for reference, prior art teaches combination of dispersing agents:
It would have been prima facie obvious for one person with ordinary skills of the art prior to filing date to select the components taught by Aulisa to arrive at current invention. It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). Especially, Aulisa specifies that the total composition can comprise at least one wetting-dispersing agent (e.g., Claim 1; [0009]; [0014]), and teaches many dispersing agents (e.g., [0048-0049]) with exemplifies combination of dispersing agents (e.g., Claims 19 and 23; [0049]; [0064]), an artisan in the field would have motivation to combine dispersing agents for reasonable expectation of success. The claimed invention is a simple combination of reagents known to be obvious materials that all already taught in prior art and discussed above. The idea for combining them flows logically from them having been individually taught in the prior art. In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
Applicant asserts that Lindner does not teach the composition being an aqueous concentrate while claim 8 is independent and directed to an aqueous suspension concentrate composition.
Lindner teaches agrochemical emulsion-type concentrates and diluted concentrate formulations; in particular oil-in-water emulsion concentrates having an oil phase with oil soluble active, continuous water phase with an optional water soluble active (corresponding to aqueous concentrate formulation), with use of surfactant emulsifier to provide for stable emulsion concentrates over time and under varying storage temperatures (e.g., Abstract), which corresponds to aqueous suspension concentrate composition as known by a person with ordinary skills in the art. MPEP 2144.01 points out "[I]n considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom." In re Preda, 401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968).
Applicant asserts that EA575 or Lindner does not direct to aqueous suspension concentrate, EA575 teaches away from the use of soluble concentrate formulations, and Lindner, which does not teach the components as part of an aqueous suspension concentrate, would not be implemented for a person of ordinary skill in the art to modify the suspension concentrates of Aulisa.
One cannot show nonobviousness by attacking references individually where the rejections are
based on combinations of references. In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck
& Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Because "[T]he test for obviousness is what
the combined teachings of the references would have suggested to [a PHOSITA]." In re Mouttet, 686
F.3d 1322, 1333, 103 USPQ2d 1219, 1226 (Fed. Cir. 2012). EA575, Lindner are combined with Aulisa to teach some chemical components in the current invention while aqueous suspension concentrate has been taught by Aulisa. Each individual prior art does not have to teach every element of the claimed invention, because it is obviousness type of rejection.
MPEP 2145.D.I states "[a] prior art reference that "teaches away" from the claimed invention is a significant factor to be considered in determining obviousness. However, "the nature of the teaching is highly relevant and must be weighed in substance. A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." In re Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994)"; Furthermore, "the prior art's mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed .... " In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir.
2004). See also UCB, Inc. v. Actavis Labs, UT, Inc., 65 F.4th 679, 692, 2023 USPQ2d 448 (Fed. Cir. 2023
)". A person with ordinary skills in the art knows that emulsion contains oil-in-water emulsion which still constitutes aqueous formulation, especially, as EA575 suggests that making the suspension concentrates emulsifiable can stabilize the components and formulation in storage and have high biological activity in application (Pg. 1 bottom-Pg. 2 top, EA575), therefore, EA575 or Lindner does not lead to prior art "teaches away", rather, it affirms that the components can demonstrate an improvement when implemented into Aulisa’s formulation. Furthermore, there is no evidence showing in prior art that components used in the emulsifiable or emulsion type formulation of EA575 or Lindner cannot work for the Aulisa’s aqueous suspension. Especially, the species disclosed by EA575, e.g., copolymers of ethylene oxide/propylene oxide, polyoxyethylene-polyoxypropylene block copolymers, in particular polyethoxylates of mono-, di-, and tristyrylphenol ethoxylates, belong to the general copolymer dispersants grafted with polyethylene oxide side chains, which are suitable for use in aqueous suspension concentrates disclosed by Aulisa.
In conclusion, the arguments are not persuasive and art rejections remain.
Please refer to the entire office action as a complete response to the remarks/arguments.
Conclusion
No claims are allowed.
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.
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/DX.Z./Examiner, Art Unit 1616
/MONICA A SHIN/Primary Examiner, Art Unit 1616
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