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 the Claims
Claims 1, 4, 6, and 12 are currently amended. Claims 2-3, 5, 7-11, 13-17 are previously presented. Claims 1-17 are pending and under examination.
Priority
This application is a 371 of PCT/EP2022/072416, filed on 08/10/2022. Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. EP 21190962.7, filed on 08/12/2021. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Rejections withdrawn
The 35 USC § 102 rejection imposed in the previous correspondence is withdrawn due to applicant’s amendment of moving the key elements of dependent claim 4 and 6 into independent claim 1, rendering it no longer anticipated. The non-statutory double patenting rejection made over US Patent 115,405,13 has been withdrawn due to applicant’s amendment of moving the key elements of the previously presented claims 4 and 6, both of which were patentably distinct, into independent claim 1.
The non-statutory double patenting rejection made over co-pending U.S Application No. 17/886,561 has been withdrawn due to applicant’s amendment of moving the key elements of the previously presented claims 4 and 6, both of which were patentably distinct, into independent claim 1.
As these rejections are withdrawn, applicant’s arguments toward these rejections are withdrawn.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
Rejections modified in view of applicant’s amendments and arguments: Prior art reference unchanged, evidentiary references added, claim mappings modified, obviousness statement modified.
Claims 1-3 and 5-17 are rejected under 35 U.S.C. 103 as being unpatentable over Eggebert et al. (USPGPub 20190313637A1 making citations from its corresponding Patent US11540513B2) as evidenced by Hughes et al. (EP0429307B1) as further evidenced by Beran et al. (Beran E, Hull S, Steininger M. The Relationship Between the Chemical Structure of Poly(alkylene glycol)s and Their Aerobic Biodegradability in an Aqueous Environment. Journal of Polymers and the Environment. 2012;21(1):172-180. doi:https://doi.org/10.1007/s10924-012-0445-2).
Eggebert et al. discloses aqueous compositions comprising particles coated with at least one non-amphoteric, quaternizable polymer which is water soluble at 20°C, and at least one dispersing component, wherein the dispersing component comprises a dispersing agent selected from an amphiphilic graft polymer based on water-soluble polyalkylene oxides (A) as a graft base (or backbone) and side chains formed by polymerization of a vinyl ester component (B), said polymer having an average of ≤ 1 graft site per 50 alkylene oxide units and mean molar masses Mw of from 3,000 to 100,000 g/mol (abstract). Eggebert et al. teaches that the composition relates to agrochemical compositions (column 3, lines 27 to 30). Eggebert et al. teaches that the amphiphilic graft polymer has (A) from 20 to 70 wt.-% of a water-soluble polyalkylene oxide as a graft base, and (B) side chains formed by free-radical polymerization of from 30 to 80 wt.-% of a vinyl ester component, composed of (B1) from 70 to 100 wt.-% of vinyl acetate and/or vinyl propionate, and (B2) from 0 to 30 wt.-% of a further ethylenically unsaturated monomer in the presence of (A) (column 2, lines 25-30). Eggebert et al. teaches that the inventive graft polymers feature a narrow molar mass distribution and hence a polydispersity Mw/Mn of generally ≤3 (column 9, lines 9-13). Eggebert et al. teaches that the polyalkylene oxide backbone preferably contains units of ethylene oxide, propylene oxide and/or butylene oxide, with polyethylene oxide (known as PEG) being the most preferred polyalkylene oxide (column 10, lines 64-68). Eggebert et al. teaches that the especially preferred are graft polymers derived from polyethylene oxide (backbone) having a molecular weight 2,000 to 50,000 g/mol (column 11, lines 5-7), which presents an overlapping range of backbone molecular weight. The lower range of such polyethylene oxide molecular weights taught by Eggebert et al. (i.e., 2000 to 3800 Da) overlapping with those in the present claims would have been known to increase the rate of biodegradability of the graft polymer. This is evidenced by Hughes et al., which teaches that polymers such as polyalkylene oxides are preferably used in graft polymers at molecular weights preferably from 200 to 10,000 Mn [¶15], and that shorter (and thus lower molecular weight), unbranched graft chains lead to a more biodegradable chain [¶14]. This is further evidenced by Beran et al., which showed that the biodegradability of polyalkylene glycol backbones in polymers/copolymers depends on its molecular weight, with lower molecular weights (i.e., 350-1,000 Da) being more readily biodegradable than higher molecular weights (i.e., 1,000-3,600 Da) [abstract], thus further reinforcing that decreasing the molecular weight of polyalkylene oxide in polymers was known to increase biodegradability. Beran et al. further teaches that a form of polyalkylene oxide (PAG PE40, M.W = 2,500 Da) experiences aerobic biodegradation rates of over 60% within 28 days in aqueous mediums (table 1, figure 2b, figure 3), further evidencing that polyalkylene oxides with M.W. ranges overlapping with those claimed and covered by Eggebert et al. was known to also have biodegradability rates overlapping with those claimed. Eggebert et al. teaches that the polyalkylene oxides (A) may be the corresponding polyalkylene glycols in free form, and they may also be capped at one or both end groups (column 10, lines 59-61). Eggebert et al. teaches that the mean molecular weight Mw of the inventive graft polymers is from 3,000 to 100,000 g/mol (column 9, lines 17-19). Eggebert et al. teaches that the vinyl ester component (B) may consist advantageously of (B1) vinyl acetate or vinyl propionate or of mixtures of vinyl acetate and vinyl propionate (column 10, lines 24-28). Eggebert et al. teaches that the amphiphilic graft polymers have preferably (A) from 20% to 70 wt.-% of a water-soluble polyalkylene oxide as a graft base and (B) side chains formed by free-radical polymerization of from 30% to 80 wt.-% of a vinyl ester component, based on the total weight of the amphiphilic graft polymer––wherein the vinyl ester component (B) is composed of (B1) from 70% to 100 wt.-% of vinyl acetate and/or vinyl propionate and (B2) from 0% to 30 wt.-% of a further ethylenically unsaturated monomer, based on the total amount of the vinyl ester component (B) (column 9, lines 38-47). More preferably, they comprise from 25% to 60 wt.-% of the graft base (A) and from 40 to 75 wt.-% of the polyvinyl ester component (B) (column 9, 48-50). Eggebert et al. teaches that the agrochemical composition may include pesticides (column 1, lines 25-28), which is described to be an active ingredient (column 1, lines 42-43). Eggebert et al. teaches that the term “pesticide” refers to fungicides, insecticides, and herbicides (column 18, lines 4-7). Eggebert et al. teaches that the pesticide for the agrochemical composition can be selected from azoxystrobin, fluxapyroxad, chlorothalonil, and mefentrifluconazole (column 2, lines 52-56). Eggebert et al. teaches that the agrochemical composition can be formulated in the form of wettable powders, wettable dusts, or wettable granules (column 19, lines 23-26). Eggebert et al. teaches that the composition can also be formulated in the form of all possible types of suspensions (column 19, lines 23-24). Eggebert et al. teaches that the composition can be used as powder or granules, preferably the coated particles can be stored and applied as aqueous suspensions (dispersions), preferably suspension concentrates (column 19, lines 19-22). In a single embodiment (column 22, table 1, inventive example IE1), the Azoxystrobin was used as an active ingredient formulated with an example of the above dispersing component (composed of said graft polymer: Pluriol® E 6000 (40 wt.-%) (PEG 6000, BASF SE)/Vinyl Acetate (60 wt.-%)) ––with Azoxystrobin being at 25% w/w, and the dispersing component being at 2.5% w/w, which gives them a ratio of 10:1, and thus overlaps with the claimed drug-to-graft polymer weight ratio of 1:1 to 30:1. Eggebert teaches various other species of pesticides, insecticides, fungicides, and herbicides (columns 17-19).
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to arrive at the claimed compositions solely in view of the teachings of Eggebert et al. This is because Eggebert teaches agrochemical compositions comprising a pesticide active ingredient and a dispersing component selected from amphiphilic graft polymers based on a water-soluble polyalkylene oxide backbone and vinyl ester side-chains––formed by free-radical polymerization in the presence of the backbone, with overlapping molecular weight ranges, backbone/sidechain weight ratios, monomer selections, and additional structural features that also overlap with the present claims. Eggebert further teaches that such compositions are directed to agrochemical uses, defines pesticides, fungicides, insecticides, and herbicides, lists overlapping active ingredients, and describes overlapping formulation types, which therefore establishes substantial characteristics that squarely overlap with all of the above claims. Any of the claimed limitations not expressly recited in Eggebert, including biodegradation rates according to OECD 301F per present claim 1, is considered inherent to Egbert’s formulation teachings (i.e., polyethylene oxide (backbone) having a molecular weight 2,000 to 3,800 g/mol, overlapping with those in the present claim) as evidenced by Hughes and Beran. Therefore, a person of ordinary skill in the art would have been motivated to utilize the graft polymers disclosed by Eggebert in agrochemical compositions to achieve stable, effective dispersions of pesticide actives, as Eggebert explicitly teaches these polymers as dispersing agents for such compositions. Furthermore, because such graft polymers are taught as conventional dispersing agents for agrochemical applications, one of ordinary skill in the art would have had reasonable expectation of success in arriving at the claimed invention, as its use represents a predictable application of known materials for their intended use.
Rejection modified as required by applicant’s substantial amendments (i.e., changing the percentage of OECD 301F degradation rate per claim 4): Prior art reference added, claim mapping added, obviousness statement added.
Claims 4 is rejected under 35 U.S.C. 103 as being unpatentable over Eggebert et al. (USPGPub 20190313637A1 making citations from its corresponding Patent US11540513B2) in view of Raether et al. (US20200139323A1) as evidenced by Hughes et al. (EP0429307B1) as further evidenced by Beran et al. (Beran E, Hull S, Steininger M. The Relationship Between the Chemical Structure of Poly(alkylene glycol)s and Their Aerobic Biodegradability in an Aqueous Environment. Journal of Polymers and the Environment. 2012;21(1):172-180. doi:https://doi.org/10.1007/s10924-012-0445-2).
Eggebert et al. teaches all required limitations of claims 1-3 and 5-17 as evidenced by Hughes et al. and by Beran et al.
However, Eggebert et al. fails to explicitly teach the biodegradation of the graft polymers being at least 40% w/w by solids within 28 days according to OECD 301F, as taught by present claims 4.
Raether et al. discloses a surfactant comprising at least one C8 to C30 branched alkanol alkoxylate, a process for the preparation of the surfactant, an article comprising the surfactant, and a use of the surfactant [¶abstract]. Raether et al. further discloses readily biodegradable surfactants obtained from branched aliphatic alcohols and including a polyethylene oxide block [¶abstract]. Raether et al. teaches that organic additives such as polyvinyl acetate may be included in the composition [¶162]. Raether et al. teaches such compositions can be used for crop protection formulation [¶38]. Raether et al. states that biodegradability of such compositions is achieved at decomposition percentages of at least 60% determined in accordance with OECD 301F [¶32, 138].
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, seeking to improve or ensure biodegradability of Eggebert’s agrochemical graft polymer, to select a polyethylene oxide graft base/backbone from the lower portion of Eggebert’s expressly preferred 2,000 to 50,000 g/mol range, including 2,000 to 3800 g/mol. This is because Hughes and Beran evidence that lower molecular weight polyalkylene oxide/polyalkylene glycol structures biodegrade more readily than higher molecular weight structures, and Raether et al. teaches that biodegradability according to OECD 301F was a recognized desirable property for surfactant/additives/excipients in crop-protection formulations. One would have thus been motivated to combine these teachings to fine-tune the low molecular weight of these polyalkylene oxide/polyalkylene glycol structures to achieve such desirable biodegradability parameters as set forth by to OECD 301. One of ordinary skill in the art would have had a reasonable expectation of success in doing so because these two references are both directed to compatible compositions for agricultural use.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Rejections Maintained in view of amendments: Co-pending application claim groupings modified, mapping
Claims 1-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over the following claims of US Patent 11540513: claims 1, 9, 10, and 14 (for present claim 1, 2, 4, 6, 7, 8); 2 (for present claim 3); 4, 5, and 6 (for present claim 5); 4 (for present claims 10); 4 (for present claim 11); 1 and 4 (for present claim 12); 4, 5, 6 (for claim 13); 9 and 10 (for present claim 14); claim 10 (for present claim 15) in view of Eggebert et al. (USPGPub 20190313637A1 making citations from its corresponding Patent US11540513B2) as evidenced by Beran et al. (Beran E, Hull S, Steininger M. The Relationship Between the Chemical Structure of Poly(alkylene glycol)s and Their Aerobic Biodegradability in an Aqueous Environment. Journal of Polymers and the Environment. 2012;21(1):172-180. doi:https://doi.org/10.1007/s10924-012-0445-2).
Eggebert et al. discloses aqueous compositions comprising particles coated with at least one non-amphoteric, quaternizable polymer which is water soluble at 20°C, and at least one dispersing component, wherein the dispersing component comprises a dispersing agent selected from an amphiphilic graft polymer based on water-soluble polyalkylene oxides (A) as a graft base (or backbone) and side chains formed by polymerization of a vinyl ester component (B), said polymer having an average of ≤ 1 graft site per 50 alkylene oxide units and mean molar masses Mw of from 3,000 to 100,000 g/mol (abstract). Eggebert et al. teaches that the composition relates to agrochemical compositions (column 3, lines 27 to 30). Eggebert et al. teaches that the amphiphilic graft polymer has (A) from 20 to 70 wt.-% of a water-soluble polyalkylene oxide as a graft base, and (B) side chains formed by free-radical polymerization of from 30 to 80 wt.-% of a vinyl ester component, composed of (B1) from 70 to 100 wt.-% of vinyl acetate and/or vinyl propionate, and (B2) from 0 to 30 wt.-% of a further ethylenically unsaturated monomer in the presence of (A) (column 2, lines 25-30). Eggebert et al. teaches that the inventive graft polymers feature a narrow molar mass distribution and hence a polydispersity Mw/Mn of generally ≤3 (column 9, lines 9-13). Eggebert et al. teaches that the polyalkylene oxide backbone preferably contains units of ethylene oxide, propylene oxide and/or butylene oxide, with polyethylene oxide (known as PEG) being the most preferred polyalkylene oxide (column 10, lines 64-68). Eggebert et al. teaches that the especially preferred are graft polymers derived from polyethylene oxide (backbone) having a molecular weight 2,000 to 50,000 g/mol (column 11, lines 5-7), which presents an overlapping range of backbone molecular weight. The claimed biodegradation rates according to OECD 301 F would have been inherent to the low molecular weight polyethylene oxide backbone as evidenced by Beran et al., which showed that the biodegradability of polyalkylene glycol backbones in polymers/copolymers depends on its molecular weight, with lower molecular weights (i.e., 350-1,000 Da) being more readily biodegradable than higher molecular weights (i.e., 1,000-3,600 Da) [abstract], thus further reinforcing that decreasing the molecular weight of polyalkylene oxide in polymers was known to increase biodegradability rate. Beran et al. further teaches that a form of polyalkylene oxide (PAG PE40, M.W = 2,500 Da) experiences aerobic biodegradation rates of over 60% within 28 days in aqueous mediums (table 1, figure 2b, figure 3), further evidencing that polyalkylene oxides with M.W. ranges overlapping with those claimed and covered by Eggebert et al. and US Patent 11540513 was known to also have biodegradability rates overlapping with those claimed. Eggebert et al. teaches that the polyalkylene oxides (A) may be the corresponding polyalkylene glycols in free form, and they may also be capped at one or both end groups (column 10, lines 59-61). Eggebert et al. teaches that the mean molecular weight Mw of the inventive graft polymers is from 3,000 to 100,000 g/mol (column 9, lines 17-19). Eggebert et al. teaches that the vinyl ester component (B) may consist advantageously of (B1) vinyl acetate or vinyl propionate or of mixtures of vinyl acetate and vinyl propionate (column 10, lines 24-28). Eggebert et al. teaches that the amphiphilic graft polymers have preferably (A) from 20% to 70 wt.-% of a water-soluble polyalkylene oxide as a graft base and (B) side chains formed by free-radical polymerization of from 30% to 80 wt.-% of a vinyl ester component, based on the total weight of the amphiphilic graft polymer––wherein the vinyl ester component (B) is composed of (B1) from 70% to 100 wt.-% of vinyl acetate and/or vinyl propionate and (B2) from 0% to 30 wt.-% of a further ethylenically unsaturated monomer, based on the total amount of the vinyl ester component (B) (column 9, lines 38-47). More preferably, they comprise from 25% to 60 wt.-% of the graft base (A) and from 40 to 75 wt.-% of the polyvinyl ester component (B) (column 9, 48-50). Eggebert et al. teaches that the agrochemical composition may include pesticides (column 1, lines 25-28), which is described to be an active ingredient (column 1, lines 42-43). Eggebert et al. teaches that the term “pesticide” refers to fungicides, insecticides, and herbicides (column 18, lines 4-7). Eggebert et al. teaches that the pesticide for the agrochemical composition can be selected from azoxystrobin, fluxapyroxad, chlorothalonil, and mefentrifluconazole (column 2, lines 52-56). Eggebert et al. teaches that the agrochemical composition can be formulated in the form of wettable powders, wettable dusts, or wettable granules (column 19, lines 23-26). Eggebert et al. teaches that the composition can also be formulated in the form of all possible types of suspensions (column 19, lines 23-24). Eggebert et al. teaches that the composition can be used as powder or granules, preferably the coated particles can be stored and applied as aqueous suspensions (dispersions), preferably suspension concentrates (column 19, lines 19-22). In a single embodiment (column 22, table 1, inventive example IE1), the Azoxystrobin was used as an active ingredient formulated with an example of the above dispersing component (composed of said graft polymer: Pluriol® E 6000 (40 wt.-%) (PEG 6000, BASF SE)/Vinyl Acetate (60 wt.-%)) ––with Azoxystrobin being at 25% w/w, and the dispersing component being at 2.5% w/w, which gives them a ratio of 10:1, and thus overlaps with the claimed drug-to-graft polymer weight ratio of 1:1 to 30:1. Eggebert teaches various other species of pesticides, insecticides, fungicides, and herbicides (columns 17-19).
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to arrive at the claimed compositions with’ 513 in view of the teachings of Eggebert et al. This is because Eggebert teaches agrochemical compositions comprising a pesticide active ingredient and a dispersing component selected from amphiphilic graft polymers based on a water-soluble polyalkylene oxide backbone and vinyl ester side-chains––formed by free-radical polymerization in the presence of the backbone, with overlapping molecular weight ranges, backbone/sidechain weight ratios, monomer selections, and additional structural features that also overlap with the present claims. Eggebert further teaches that such compositions are directed to agrochemical uses, defines pesticides, fungicides, insecticides, and herbicides, lists overlapping active ingredients, and describes overlapping formulation types, which therefore establishes substantial characteristics that squarely overlap with all of the above claims. Therefore, a person of ordinary skill in the art would have been motivated to utilize the graft polymers disclosed by Eggebert in agrochemical compositions to achieve stable, effective dispersions of pesticide actives, as Eggebert explicitly teaches these polymers as dispersing agents for such compositions. Furthermore, because such graft polymers are taught as conventional dispersing agents for agrochemical applications, one of ordinary skill in the art would have had reasonable expectation of success in arriving at the claimed invention, as its use represents a predictable application of known materials for their intended use.
Although the claims at issue are not identical, they are not patentably distinct from each other because each of the above claims (or claim groups) of co-pending ‘513 teach all limitations of their corresponding claim(s) listed in the present application in view of Eggebert, and are thus obvious variations of each other, which renders them patentably indistinct.
Claims 1-7, 9, and 10-15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the following claims of co-pending U.S Application No. 18/682,592 (referred to as co-pending ‘592): 20, 25, 32 and 34 (for present claims 1, 5, 6, 7); 22 (for present claim 3, 9); 25 (for present claim 4); and 23 (for present claim 10) ––In view of Eggebert et al. (USPGPub 20190313637A1 making citations from its corresponding Patent US11540513B2).
Each of the above claims of co-pending ‘592 teach all limitations of their corresponding claim(s) listed in the present application, except for the following difference: Claim 1 of the present application lists the addition of an agrochemical active ingredient, which is not taught by co-pending ‘592. Eggebert et al. remedies this deficiency by teaching that agrochemical ingredients such as azoxystrobin, fluxapyroxad, chlorothalonil, and mefentrifluconazole can be added to such compositions for pesticidal effects (column 2, lines 52-56), thus making such additions to the claimed composition conventional. Eggebert et al. discloses aqueous compositions comprising particles coated with at least one non-amphoteric, quaternizable polymer which is water soluble at 20°C, and at least one dispersing component, wherein the dispersing component comprises a dispersing agent selected from an amphiphilic graft polymer based on water-soluble polyalkylene oxides (A) as a graft base (or backbone) and side chains formed by polymerization of a vinyl ester component (B), said polymer having an average of ≤ 1 graft site per 50 alkylene oxide units and mean molar masses Mw of from 3,000 to 100,000 g/mol (abstract). Eggebert et al. teaches that the composition relates to agrochemical compositions (column 3, lines 27 to 30). The selection, inclusion, or exclusion of agrochemical active ingredients to agrochemical compositions is a routine formulation choice that would have been obvious to a person of ordinary skill in the art before the effective filing date of this claimed invention, since agrochemical active ingredients are well-known to be interchangeable based on many factors such as pesticidal purpose. Thus, adjusting an agrochemical composition by adding or omitting a conventional active agent represents no more than a routine and predictable variation using known components for their established functions, made with a reasonable expectation of success. Accordingly, the present claims differ from the claims of co-pending ‘592 only by an obvious variation that does not impart a patentable distinction.
This is a provisional non-statutory double patenting rejection because the patentably indistinct co-pending ‘592 claims have not yet in fact been patented.
Claims 1-13 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the following claims of co-pending U.S Application No. 18/682,540 (referred to as co-pending ‘540): 20, 24, 25, 34 and 35 (for present claims 1, 10, and 11); 22 (for present claims 3 and 9); 25 (for present claim 4); 20 and 24 (for present claims 5 and 6); 20 and 21 (for present claims 7 and 8); 20, 21, and 24 (for present claims 12 and 13)––In view of Eggebert et al. (USPGPub 20190313637A1 making citations from its corresponding Patent US11540513B2). Each of the above claims (or claim groups) of co-pending ‘540 teach all limitations of their corresponding claim(s) listed in the present application, except for the following difference: Claim 1 of the present application lists the addition of an agrochemical active ingredient, which is not taught by co-pending ‘540. Eggebert et al. remedies this deficiency by teaching that agrochemical ingredients such as azoxystrobin, fluxapyroxad, chlorothalonil, and mefentrifluconazole can be added to such compositions for pesticidal effects (column 2, lines 52-56), thus making such additions to the claimed composition conventional. Eggebert et al. discloses aqueous compositions comprising particles coated with at least one non-amphoteric, quaternizable polymer which is water soluble at 20°C, and at least one dispersing component, wherein the dispersing component comprises a dispersing agent selected from an amphiphilic graft polymer based on water-soluble polyalkylene oxides (A) as a graft base (or backbone) and side chains formed by polymerization of a vinyl ester component (B), said polymer having an average of ≤ 1 graft site per 50 alkylene oxide units and mean molar masses Mw of from 3,000 to 100,000 g/mol (abstract). Eggebert et al. teaches that the composition relates to agrochemical compositions (column 3, lines 27 to 30). The selection, inclusion, or exclusion of agrochemical active ingredients to agrochemical compositions is a routine formulation choice that would have been obvious to a person of ordinary skill in the art before the effective filing date of this claimed invention, since agrochemical active ingredients are well-known to be interchangeable based on many factors such as pesticidal purpose. Thus, adjusting an agrochemical composition by adding or omitting a conventional active agent represents no more than a routine and predictable variation using known components for their established functions, made with a reasonable expectation of success. Accordingly, the present claims differ from the claims of co-pending ‘540 only by an obvious variation that does not impart a patentable distinction.
This is a provisional non-statutory double patenting rejection because the patentably indistinct co-pending ‘540 claims have not yet in fact been patented.
Claims 1-10, and 12-13 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the following claims of co-pending U.S Application No. 18/438,576 (referred to as co-pending ‘576): 1, 10, 14, 15, 18, (for present claims 1 and 7); 5 (for present claim 3); 10 (for present claim 4); 1 and 17 (for present claim 5); 14, 15, and 18 (for present claim 6); 1, 2, 3, and 9 (for present claim 8); 5 (for present claim 9); 6 and 7 (for present claim 10); 18 (for present claim 12); and 17 (for present claim 13)–In view of Eggebert et al. (USPGPub 20190313637A1 making citations from its corresponding Patent US11540513B2).
Each of the above claims (or claim groups) of co-pending ‘576 teach all limitations of their corresponding claim(s) listed in the present application, except for the following difference: Claim 1 of the present application lists the addition of an agrochemical active ingredient, which is not taught by co-pending ‘576. Eggebert et al. remedies this deficiency by teaching that agrochemical ingredients such as azoxystrobin, fluxapyroxad, chlorothalonil, and mefentrifluconazole can be added to such compositions for pesticidal effects (column 2, lines 52-56), thus making such additions to the claimed composition conventional. Eggebert et al. discloses aqueous compositions comprising particles coated with at least one non-amphoteric, quaternizable polymer which is water soluble at 20°C, and at least one dispersing component, wherein the dispersing component comprises a dispersing agent selected from an amphiphilic graft polymer based on water-soluble polyalkylene oxides (A) as a graft base (or backbone) and side chains formed by polymerization of a vinyl ester component (B), said polymer having an average of ≤ 1 graft site per 50 alkylene oxide units and mean molar masses Mw of from 3,000 to 100,000 g/mol (abstract). Eggebert et al. teaches that the composition relates to agrochemical compositions (column 3, lines 27 to 30). The selection, inclusion, or exclusion of agrochemical active ingredients to agrochemical compositions is a routine formulation choice that would have been obvious to a person of ordinary skill in the art before the effective filing date of this claimed invention, since agrochemical active ingredients are well-known to be interchangeable based on many factors such as pesticidal purpose. Thus, adjusting an agrochemical composition by adding or omitting a conventional active agent represents no more than a routine and predictable variation using known components for their established functions, made with a reasonable expectation of success. Accordingly, the present claims differ from the claims of co-pending ‘576 only by an obvious variation that does not impart a patentable distinction.
This is a provisional non-statutory double patenting rejection because the patentably indistinct co-pending ‘576 claims have not yet in fact been patented.
Claims 1-7, and 9-13 are rejected on the ground of non-statutory double patenting as being unpatentable over the following claims of US Patent 12129453: 1, 5 (for present claims 1, 4, 5, 6, 7, 11, 12, and 13); 3 (for present claim 3); 5 (for present claim 4); 3 (for present claim 9); 4 (for present claim 10)–In view of Eggebert et al. (USPGPub 20190313637A1 making citations from its corresponding Patent US11540513B2).
Each of the above claims (or claim groups) of co-pending ‘606 teach all limitations of their corresponding claim(s) listed in the present application, except for the following difference: Claim 1 of the present application lists the addition of an agrochemical active ingredient, which is not taught by co-pending ‘606. Eggebert et al. remedies this deficiency by teaching that agrochemical ingredients such as azoxystrobin, fluxapyroxad, chlorothalonil, and mefentrifluconazole can be added to such compositions for pesticidal effects (column 2, lines 52-56), thus making such additions to the claimed composition conventional. Eggebert et al. discloses aqueous compositions comprising particles coated with at least one non-amphoteric, quaternizable polymer which is water soluble at 20°C, and at least one dispersing component, wherein the dispersing component comprises a dispersing agent selected from an amphiphilic graft polymer based on water-soluble polyalkylene oxides (A) as a graft base (or backbone) and side chains formed by polymerization of a vinyl ester component (B), said polymer having an average of ≤ 1 graft site per 50 alkylene oxide units and mean molar masses Mw of from 3,000 to 100,000 g/mol (abstract). Eggebert et al. teaches that the composition relates to agrochemical compositions (column 3, lines 27 to 30). The selection, inclusion, or exclusion of agrochemical active ingredients to agrochemical compositions is a routine formulation choice that would have been obvious to a person of ordinary skill in the art before the effective filing date of this claimed invention, since agrochemical active ingredients are well-known to be interchangeable based on many factors such as pesticidal purpose. Thus, adjusting an agrochemical composition by adding or omitting a conventional active agent represents no more than a routine and predictable variation using known components for their established functions, made with a reasonable expectation of success. Accordingly, the present claims differ from the claims of ‘453 only by an obvious variation that does not impart a patentable distinction.
Response to Arguments
Applicant's arguments filed on 04/27/2026 have been fully considered but they are not persuasive.
Applicant argues that Eggebert does not teach or suggest the amended backbone Mn range of 500 to 3,800 g/mol. This argument is not persuasive. Eggebert teaches amphiphilic graft polymers for agrochemical compositions based on water-soluble polyalkylene oxide graft bases/backbones and vinyl ester sidechains, and further teaches preferred polyethylene oxide backbones having molecular weights of 2,000 to 50,000 g/mol, which overlaps with the claimed backbone Mn range, at least from 2,000 to 3,800 g/mol Accordingly, Eggebert teaches or suggests selecting a polyethylene oxide backbone within the presently claimed range.
Applicant argues that Eggebert’s working examples use backbone molecular weights of 4,000 to 6,000 g/mol and therefore are outside the claimed range. This argument is not persuasive because a prior art reference is not limited to working examples. Eggebert’s broader disclosure expressly teaches polyethylene oxide backbone molecular weights overlapping the claimed range, and the ordinary artisan would have considered the reference as a whole, not merely a specific exemplified species.
Applicant argues that the claimed biodegradation values would not have been expected from Eggebert. This is not persuasive, as Hughes and Beran evidence that lower molecular weight polyalkylene oxide/polyalkylene glycol structures were known to exhibit improved aerobic biodegradation relative to higher molecular weight structures. Raether et al. further evidences that biodegradability according to OECDF 301F was a recognized desirable property for surfactants/additives used in crop-protection formulations. Thus, a person of ordinary skill in the art would have had a reason to select the lower portion of Eggebert’s disclosed polyethylene oxide backbone weight range, including 2,000 to 3,800 g/mol.
Applicant’s evidence of unexpected results has been considered but is not persuasive because it is not commensurate with the scope of claim 1. Claim 1 broadly encompasses graft polymers prepared from C2-C10 alkylene oxide backbones, optionally with C2-C14 polyols or C2-C14- polyamines, and polymeric sidechains obtained from at least one vinyl ester monomer, while relied upon data is limited to selected exemplified graft polymers. Applicant has thus not established that the asserted relationship between backbone Mn and biodegradation applies across the full breadth of the claimed genus.
Applicant’s evidence also does not establish criticality of the upper endpoint 3,800 g/mol. Applicant acknowledges that multiple graft polymers having backbone Mn values above 3,800 g/mol (e.g., 4,000 g/mol) nevertheless satisfy the claimed biodegradation threshold. Thus, the data shows, at most, a general trend that lower molecular wight may improve biodegradation. That trend is consistent with Hughes and Beran and therefore does not establish an unexpected result sufficient to overcome the Prima facie case of obviousness.
Applicant argues that Eggebert’s inventive example IE1 does not inherently possess the claimed biodegradation because the corresponding application example has 28 wt.-% biodegradations. This argument has been considered. The rejection is not maintained on the basis that Eggebert IE1 inherently satisfies the amended biodegradation limitation. Rather, the rejection is based on Eggebert’s disclosure of overlapping polyethylene oxide backbone molecular weights, in combination with the teachings and evidence of Hughes, Beran, and Raether et al., which provide a reason to select lower molecular weight polyalkylene oxide backbones to improve biodegradation.
Applicant argues that Eggebert does not teach increasing biodegradation by specifically selecting graft polymers having backbone Mn values of 500 to 3,800 g/mol. This argument is not persuasive because obviousness does not require the prior art to expressly teach the applicant’s stated discovery in haec verba. Eggebert teaches the same type of agrochemical graft-polymer composition and an overlapping polyethylene oxide backbones molecular weight range, while Hughes and Beran evidence that lower molecular wight polyalkylene oxide structures biodegrade more readily. Therefore, selecting lower overlapping portions of Eggebert’s disclosed backbone molecular weight range would have been an obvious selection of a result-effective variable to improve biodegradation.
With respect to claim 4, applicant argues that Eggebert does not teach biodegradation of at least 40 wt.-% within 28 days according to OECD 301F. This argument is not persuasive because Beran evidences that polyalkylene glycol materials having molecular weights within the low molecular weight region, including 2,500 g/mol, can exhibit aerobic biodegradation greater than 60% within 28 days. Raether et al. likewise teaches that biodegradation levels exceeding 60% according to OECD 301F were known for surfactant compositions containing polyethylene oxide blocks. Therefore, achieving at least 40 wt.-% biodegradations would have been reasonably expected when selecting lower molecular weight polyalkylene oxide backbone materials for improved biodegradability.
Applicant argues that obviousness-type double patenting (ODP) #2 and #6 rejections should be withdrawn due to unexpected results, namely reflected by incorporating the previously presented claim 6 into the currently amended claim 1. This argument is not persuasive because the amended claims have been reconsidered in view of the incorporated limitations, and the claims remain unpatentable over the cited ODP reference combinations. This is because as previously stated, applicant has failed to demonstrate the novelty in the present claims required to reverse the ODP rejection imposed in the previous correspondence. The maintained ODP rejections have also been modified to reflect the amendments made by the applicant.
Applicant’s argument against the detergent reference for the ODP #5 and #6, stating that there is no reason to add an agrochemical ingredient to a detergent composition, is not persuasive. This is because the rejection does not require bodily incorporation of an agrochemical active ingredient into detergent composition for detergent use. The cited claims are relied upon for their teachings of structurally similar graft-polymer/surfactant compositions, while Eggebert teaches that such amphiphilic graft polymers are useful as dispersing agents in agrochemical compositions containing pesticides. Thus, using the known graft-polymer dispersing agents in agrochemical compositions would have been an obvious variation and would not require changing the principal operation of the cited compositions.
Conclusions
No claim is found allowable.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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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Arya A. Bazargani, Ph.D.
Patent Examiner
Art Unit 1613
/MARK V STEVENS/ Primary Examiner, Art Unit 1613
Prosecution Insights