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 .
Applicant’s election without traverse of Group I and Compound 1 in the reply filed on April 30, 2026 is acknowledged.
Claims 56-59 and 80-83 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Invention and Species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on April 30, 2026.
Claims
Claim Rejections - 35 USC § 112 - Indefiniteness
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.
Claim 67 and 78-79 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 67 and 78-79 recite an ethoxylated miner oil. The instant specification gives an example which is an ethoxylated castor oil. Castor oil is not a mineral oil. Therefore it is not clear what is encompassed by “mineral” oil making the claims indefinite.
Claim Rejections - 35 USC § 102 - Anticipation
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.
1) Claims 52-55, 60 and 70-71 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kim et al. (J. or Agric. Food Chem. 2004, already of record).
Kim et al. disclose anthraquinones that show antifungal properties. The anthraquinones include Rhein with the structure:
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Rhein meets the limitation of compound 1, the elected species. Rhein was dissolved in dimethyl sulfoxide 0.5 (mL, 0.55 g) and water (49.5 mL) containing Tween 20 (0.250 g, a surfactant and emulsifier). Rhein may be useful leads developing new type of fungicide for fungi on crops (page 6099, col. 2). The results indicated that the aromatic hydroxyls are probably important moieties for antifungal actions, given that the four compounds (aloe-emodin, emodin, physcion, and rhein) have at least two such groups whereas anthraquinone and anthraquinone-2-carboxylic acid lack them.
The Tween 20 comprises 0.5% of the total weight of the composition, meeting instant claim 71.
Kim et al. anticipate the instant claims.
2) Claims 52-55, 60 and 70-71 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Shi et al. (CN 104642312).
Shi et al. disclose a pesticide nano-emulsion composition comprising anthraquinone (Abstract). The composition comprises rhein (compound 1), an emulsifying agent, a co-emulsifier, water and a stabilizing agent. The oil phase comprises polyoxyethylene -40 hydrogenated castor oil, caprylic capric polyethylene glycol glyceride, polyethylene glycol lauric glyceride, tween -80, poloxamer -188, and combinations thereof (meeting emulsifier and co-emulsifier). The pH of the composition are adjusted with NaOH (an alkalizing agent) (paragraph 0008).
Shi et al. anticipate the instant claims.
Claim Rejections - 35 USC § 103 - Obviousness
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.
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.
1) Claims 52-55, 60-67, 70-71 and 73-79 are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al. (J. or Agric. Food Chem. 2004, already of record) in view of Jeanmart et al. (WO 2009000533).
Kim et al. disclose anthraquinones that show antifungal properties. The anthraquinones include Rhein with the structure:
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192
236
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Rhein meets the limitation of compound 1, the elected species. Rhein was dissolved in dimethyl sulfoxide 0.5 (mL, 0.55 g) and water (49.5 mL) containing Tween 20 (0.250 g, a surfactant and emulsifier). Rhein may be useful leads developing new type of fungicide for fungi on crops (page 6099, col. 2). The results indicated that the aromatic hydroxyls are probably important moieties for antifungal actions, given that the four compounds (aloe-emodin, emodin, physcion, and rhein) have at least two such groups whereas anthraquinone and anthraquinone-2-carboxylic acid lack them.
The Tween 20 comprises 0.5% of the total weight of the composition, meeting instant claim 71.
Kim et al. differ from the instant claims insofar as they do not disclose a ketone and/or pyrrolidone solvent or the sulfonate emulsifiers of the instant claims.
Jeanmart et al. disclose herbicide compositions. Suitable solvents include N-methyl-pyrrolidone, acetone and aromatic hydrocarbons. The compositions may be formulated into emulsions. Surfactants are used and include dodecyl- benzylsulfonates, non-ionic surfactants of the fatty alcohol ethoxylate type, such as ethoxylated C.sub.12-C.sub.22 fatty alcohols; and silicon surfactants including polyalkyl-oxide-modified heptamethyltrisiloxanes. Emulsifiable concentrates include the active, dodecylbenzene sulfonate, castor oil polyglycol ether and octylphenol polyglycol ether. These concentrates are diluted with water. An example comprises the active in 0.6 ml acetone and a 45 ml formulation solution containing 10.6% Emulsogen EL (ethoxylated castor oil), 42.2% N-methyl pyrrolidone and 42.2% dipropylene glycol monomethyl ether (Example A).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have used the vehicles comprising acetone, methyl pyrrolidone and an emulsifier such as ethoxylated castor oil or a silicone because they are suitable components for formulating herbicidal compositions.
In regards to the amount of ketone and pyrrolidone solvent, solvents affect the solubility of the compositions as well as affects the penetration of the active making it a result effective variable. Therefore it would have taken no more than the relative skill of one of ordinary skill in the art to have adjusted the amount of each solvent to a specific ratio motivated by the desire to effectively deliver the active to the target. See MPEP 2144.05.
2) Claims 52-55 and 60-79 are rejected under 35 U.S.C. 103 as being unpatentable over Shi et al. (CN 104642312, already of record) in view of Jeanmart et al. (WO 2009000533).
Shi et al. disclose a pesticide nano-emulsion composition comprising anthraquinone (Abstract). The composition comprises rhein (compound 1), an emulsifying agent, a co-emulsifier, water and a stabilizing agent. The oil phase comprises polyoxyethylene -40 hydrogenated castor oil, caprylic capric polyethylene glycol glyceride, polyethylene glycol lauric glyceride, tween -80, poloxamer -188, and combinations thereof (meeting emulsifier and co-emulsifier). The pH of the composition are adjusted with NaOH (an alkalizing agent) (paragraph 0008).
Shi et al. differ from the instant claims insofar as they do not disclose a ketone and/or pyrrolidone solvent or the sulfonate emulsifiers of the instant claims.
Jeanmart et al. disclose herbicide compositions. Suitable solvents include N-methyl-pyrrolidone, acetone and aromatic hydrocarbons. The compositions may be formulated into emulsions. Surfactants are used and include dodecyl- benzylsulfonates, non-ionic surfactants of the fatty alcohol ethoxylate type, such as ethoxylated C.sub.12-C.sub.22 fatty alcohols; and silicon surfactants including polyalkyl-oxide-modified heptamethyltrisiloxanes. Emulsifiable concentrates include the active, dodecylbenzene sulfonate, castor oil polyglycol ether and octylphenol polyglycol ether. These concentrates are diluted with water. An example comprises the active in 0.6 ml acetone and a 45 ml formulation solution containing 10.6% Emulsogen EL (ethoxylated castor oil), 42.2% N-methyl pyrrolidone and 42.2% dipropylene glycol monomethyl ether (Example A).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have used the vehicles comprising acetone, methyl pyrrolidone and an emulsifier such as ethoxylated castor oil or a silicone because they are suitable components for formulating herbicidal compositions.
In regards to the amount of ketone and pyrrolidone solvent, solvents affect the solubility of the compositions as well as affects the penetration of the active making it a result effective variable. Therefore it would have taken no more than the relative skill of one of ordinary skill in the art to have adjusted the amount of each solvent to a specific ratio motivated by the desire to effectively deliver the active to the target. See MPEP 2144.05.
In regards to the emulsifier, the emulsifier stabilizes the emulsion making it a result effective variable. Therefore it would have taken no more than the relative skill of one of ordinary skill in the art to have adjusted the amount of emulsifier to obtain the desired stability. Therefore the amount of emulsifier is obvious. See MPEP 2144.05.
Claims 52-55 and 60-79 are rejected.
Claims 56-59 and 80-83 are withdrawn.
No claims allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LEZAH ROBERTS whose telephone number is (571)272-1071. The examiner can normally be reached Monday-Friday 11:00-7:30.
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/LEZAH ROBERTS/Primary Examiner, Art Unit 1612
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