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 06/10/2024 is acknowledged.
Claims 3, 6, 7, 9, 11-14 are amended. Claims 10 and 15-17 are cancelled. Claims 18-22 are new.
Claims 1-9, 11-14, and 18-22 are pending and being examined on 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 11/10/2023, is in compliance with the
provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the
Examiner.
Objection to Specification
The use of the terms Nouryon, Soprophor, Solvay, Atlas, Croda, Malvern Mastersizer, Brookfield, Atlox, Morwet, Silicaid, Aginque, Hi-Sil, Pluronic, XIAMETER, Proxel, Kelzan, which are trade names or marks used in commerce, have been noted in this application. The terms should be accompanied by the generic terminology; furthermore the terms should be capitalized wherever they appear or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Objections
Claims 3 and 18 are objected to because of the following informalities:
Claims 3 and 18 each recites “C1-C4 alkylether”. A space between “alkyl” and “ether” is recommended for claim format consistency.
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 3, 13, 18, and 22 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.
Claims 3 and 18 each recites “methacrylic acid, methyl methacrylate and an ester of polyethylene oxide or a C1-C4 alkylether thereof with methacrylic acid”. Because of the coexisting words of “and” “or” in same sentence/phrase, it is unclear whether the components, “an ester of polyethylene oxide”, “a C1-C4 alkylether thereof with methacrylic acid”, are equivalent alternatives in addition to “methacrylic acid”, “methyl methacrylate”, meaning in total four alternatives in the limitation; or “methyl methacrylate” has to be combined with “an ester of polyethylene oxide”, resulting in total three alternatives. For the purpose of compact prosecution, the claim is interpreted as “comprises at least one in polymerized form selected from the group of methacrylic acid, methyl methacrylate, an ester of polyethylene oxide, and a C1-C4 alkyl ether of polyethylene oxide with methacrylic acid”.
Claims 13 and 22 both use parentheses following the phrases of “particle size” and “viscosity”. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claims 13 and 22 each recites the broad recitation of “particle size” and “viscosity” and the claim also recites “when measured …” which is the narrower statement of the range/limitation. The claims are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. For the purpose of compact prosecution, the contents inside parentheses are considered optional, and therefore, not required.
Claims 13 and 22 each contains the trademarks/trade names of “Malvern Mastersizer” and “Brookfield”. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade names are used to identify/describe particle size/viscosity measurement tools and, accordingly, the limitations of the identification/ description are indefinite.
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 claims 1a) and 3), 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). 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, English copy uploaded, PTO-892; hereafter “EA575”) and Lindner et al. (WO2016182991, 11/17/2016, PTO-892).
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 18), 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 EA575 (EA201001575, 04/29/2011, English copy uploaded, PTO-892).
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.
However, 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, PTO-892).
Lindner throughout the reference teaches agrochemical emulsion concentrates that can comprise herbicide (e.g., Pg. 16, line 16-22).
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, PTO-892).
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), EA201001575 (04/29/2011, English copy uploaded, PTO-892; hereafter “EA575”), and Lindner et al. (WO2016182991, 11/17/2016, PTO-892) 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).
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DONGXIU ZHANG SPIERING whose telephone number is (703)756-4796. The examiner can normally be reached 7:30am-5:00pm (Except for Fridays).
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/DX.Z./Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616