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 .
DETAILED ACTION
Claim Status
The amended claim set of 25 May 2026 has been entered and reviewed.
Claims 3-6, 10, 12-15, 18, 20, 21, 23-25, 27-29, 31-49, 51-53, 54, 55, 58, 60-70, 72-97, and 100-114 are cancelled.
Claims 50, 56, 57, 98, and 99 have been amended.
Claims 1, 2, 7-9, 11, 16, 17, 19, 22, 26, 30, 50, 56, 57, 59, 71, 98, and 99 are pending.
Election/Restrictions
Applicant’s election without traverse of Group 1, claims 1, 2, 7-9, 11, 16, 17, 19, 22, 26, 59, and 71, directed to a pesticidal composition, in the reply filed on 25 May 2026 is acknowledged. Applicants also elected that the pesticidal active is azoxystrobin, the aliphatic acid is trans-2-hexenoic acid, the non-ionic surfactant is a linear alcohol ethoxylate, and the compositional form is an emulsion/emulsifiable concentrate in response to the species election requirement.
Claims 9, 30, 50, 56, 57, 98 and 99 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Claims 1, 2, 7, 8, 11, 16, 17, 19, 22, 26, 59, and 71 are under consideration to the extent of the elected species, i.e., that the pesticidal active is azoxystrobin, the aliphatic acid is trans-2-hexenoic acid, the non-ionic surfactant is a linear alcohol ethoxylate, and the compositional form is an emulsion/emulsifiable concentrate.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 25 Oct 2024 is in compliance with the provisions of 37 CFR 1.97, except where noted. Accordingly, the information disclosure statement is being considered by the examiner.
Specification
The use of the term Biosoft, Agral 90, Triton X-100 and Mero, which is a trade name or a mark used in commerce, has been noted in this application in tables 1-14. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears 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 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.
Claim 11 is are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 11 contains the trademark/trade name Biosoft®N1, Biosoft®N1-5, Biosoft®N1-7, and Biosoft®N1-9. 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 name is used to identify/describe linear alcohol ethoxylates and, accordingly, the identification/description is indefinite.
Claim Rejections - 35 USC § 103
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.
Claims 1, 2, 7, 8, 11, 16, 17, 19, 22, 26, 59, and 71 are rejected under 35 U.S.C. 103 as being unpatentable over Manhas et al. (WO2019064283, published 04 Apr 2019, listed on IDS filed 25 Oct 2024) in view of Antens et al. (US 2011/0302975, published 15 Dec 2011) as evidenced by the instant specification.
Manhas teaches compositions and methods for increasing the efficacy of pesticidal compositions and teaches synergistic pesticidal compositions ([0002]). Manhas teaches a synergistic pesticidal composition comprising a pesticidal active ingredient and a C6-C10 unsaturated aliphatic acid ([0009]). Manhas teaches aliphatic acids including a trans-2 unsaturated bond ([0014]) and specifically teaches a trans-hexenoic acid ([0019]) such as trans-2-hexenoic acid ([0088], [0139], Table 1), rendering obvious the elected species of aliphatic acid and claims 16 and 17. Manhas teaches the pesticidal active component may be azoxystrobin ([0024], [0145], Table 11) rendering obvious the elected active ingredient and claims 2 and 7. Manhas teaches that an emulsifier or other surfactant may be used and that suitable surfactants include non-ionic surfactants and ethoxylated alcohols ([0067]).
Manhas teaches mixing with at least one formulation component comprising a surfactant to from a synergistic pesticidal concentration and diluting the concentration with water to from a synergistic pesticidal emulsion ([00012]), rendering obvious the emulsion and emulsifiable concentrate of claims 26 and 71. Manhas teaches that two or more surface active agents may be used in combination ([0067]), rendering obvious the further emulsifier of claim 26. Manhas teaches adding a synergistically effective concentration of the aliphatic acid ([0012]). Manhas teaches formulations with various concentrations of active component and aliphatic acid (see Tables 1-115). For example, in Table 45 Manhas teaches a composition of azoxystrobin and trans-2-hexenoic acid where the trans-2-hexenoic acid is at a concentration of 0.15625 mg/mL. The components were prepared in a solution of potato dextrose broth (PDB) ([0083],[0155]). Assuming a density of approximately 1 g/mL the 0.15625 mg/mL trans-2-hexenoic acid can be estimated to be equivalent to 156.25 ppm which renders obvious the range of concentration values of clam 19. Further, Manhas teaches the azoxystrobin is at a concentration of 0.075 mg/mL (page 69 table 45) and thus the trans-2-hexenoic acid is at approximately 68% of the composition, rendering this an obvious percentage for the acid and rendering the range of claim 71 as obvious. Manhas teaches that the ratio of concentrations by weight of the pesticidal active and aliphatic acid is at various amounts such as between 1:100-100:1 and 1:10-10:1 ([0013]), rendering obvious the ratio of active to acid components as in claim 22. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976).
As described above, Manhas teaches the inclusion of non-ionic surfactants and alcohol ethoxylates, but Manhas does not teach the elected species of linear alcohol ethoxylate as in claim 11. This deficiency is made up for in the teachings of Antens.
Antens teaches sulphur containing fertilizer compositions (abstract) for agronomical uses ([0078]). Antens teaches that sulphur offers benefits as a fungicide and pesticide ([0004]). Antens teaches the sulphur in the form of a dispersion or emulsion ([0045]) and teaches the inclusion of at least one surfactant ([0024]). Antens teaches an example formulation using Biosoft N1-5 and describes this as a non-ionic surfactant based on alcohol ethoxylate ([0074]). Biosoft N1-5 meets the limitation of a C11 linear alcohol ethoxylate as in claim 11.
Therefore, it would have been prima facie obvious to one of ordinary skill in the
art, before the effective filing date of the claimed invention to have used Biosoft N1-5 as the alcohol ethoxylate in a composition with trans-2-hexenoic acid and azoxystrobin. Synergistic pesticidal compositions comprising the aliphatic acid trans-2-hexenoic acid and the pesticidal active azoxystrobin and additionally including ethoxylated alcohol surfactants is known from Manhas. Fertilizer compositions containing sulphur and surfactants for agronomical uses are known from Antens and it is further known that the alcohol ethoxylate Biosoft N1-5 (i.e. a non-ionic C11 linear alcohol ethoxylate) is used as a surfactant in such compositions. Thus, it would have been obvious to one of ordinary skill in the art to use Biosoft N1-5 as the surfactant in the composition of Manhas. One would have a reasonable expectation of success as the use of surfactants such as ethoxylate alcohols is known from Manhas as suitable for the compositions. Thus, Biosoft N1-5 merely represents a specific type of ethoxylate alcohol known from Antens for use in agronomical compositions that would be obvious to include in the composition of Manhas.
Regarding the limitation of claims 1, 8 and 59 that the non-ionic surfactant is effective to increase penetration of the pesticidal active and the acid across a waxy plant cuticle, the examiner notes that this limitation merely describes the function of the surfactant and does not further limit beyond which type of surfactant is in the composition. Claim 11 recites Biosoft N1-5 as a species of surfactant that meets this limitation and the instant specification provides evidence of synergistic improvement with Biosoft N1-5 (e.g. Tables 1 and 2). Thus, the Biosoft N1-5, rendered obvious from the art, meets the species of surfactant required by the functional limitation of the instant claims. The examiner notes that products 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. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references.
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.
Claims 1, 2, 7, 8, 11, 16, 17, 19, 22, 26, 59, and 71 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 6-10, 12, 13 , 44, 54 and 55 of copending Application No. 16/651,084 in view of Manhas et al. (WO2019064283, published 04 Apr 2019, listed on IDS filed 25 Oct 2024), Antens et al. (US 2011/0302975, published 15 Dec 2011) and evidenced by the instant specification.
The reference application recites a synergistic pesticidal composition comprising active ingredient such as azoxystrobin, and a C6-C10 aliphatic acid, where the active and acid are in a ratio of 1:1,000 to 100:1.
The reference application does not recite a non-ionic surfactant such as a linear alcohol ethoxylate, does not recite the aliphatic acid of trans-2-hexenoic acid, the concentration of aliphatic acid as in claim 19, the form of an emulsion or the percentage of acid.
These deficiencies are made up for in the teachings of Manhas and Antens.
The teachings of Manhas and Antens are described supra.
Therefore, it would have been prima facie obvious to one of ordinary skill in the
art, before the effective filing date of the claimed invention to have included trans-2-hexenoic acid as the aliphatic acid and to include surfactants including an alcohol ethoxylate surfactant such as Biosoft N1-5 in an emulsion form where the acid is in an amount at about 156.25 ppm and 68%. Synergistic pesticidal compositions in emulsion form are known from Manhas and comprise components including azoxystrobin, trans-2-hexenoic acid (in the amounts listed above) and ethoxylate alcohols and Biosoft N1-5 (a linear alcohol ethoxylate) is known from Antens as a suitable surfactant for agrochemical compositions. Thus, it would have been obvious to include these components and amounts in the composition of the reference application as their combination merely represents known agrochemical components combined for an agrochemical composition.
Regarding the limitation of claims 1, 8 and 59 that the non-ionic surfactant is effective to increase penetration of the pesticidal active and the acid across a waxy plant cuticle, the examiner notes that this limitation merely describes the function of the surfactant and does not further limit beyond which type of surfactant is in the composition. Claim 11 recites Biosoft N1-5 as a species of surfactant that meets this limitation and the instant specification provides evidence of synergistic improvement with Biosoft N1-5 (e.g. Tables 1 and 2). Thus, the Biosoft N1-5, rendered obvious from the art, meets the species of surfactant required by the functional limitation of the instant claims. The examiner notes that products 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. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
This is a provisional nonstatutory double patenting rejection.
Claims 1, 2, 7, 8, 11, 16, 17, 19, 22, 26, 59, and 71 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 and 13-16 of U.S. Patent No. 12,501,898 in view of Manhas et al. (WO2019064283, published 04 Apr 2019, listed on IDS filed 25 Oct 2024), Antens et al. (US 2011/0302975, published 15 Dec 2011) and evidenced by the instant specification.
The reference patent recites a synergistic pesticidal composition comprising active ingredient such as azoxystrobin, and a C6-C10 unsaturated aliphatic acid, where the active and acid are in a ratio of 100:1 to 1:10,000.
The reference patent does not recite a non-ionic surfactant such as a linear alcohol ethoxylate, does not recite the aliphatic acid of trans-2-hexenoic acid, the concentration of aliphatic acid as in claim 19, the form of an emulsion or the percentage of acid.
These deficiencies are made up for in the teachings of Manhas and Antens.
The teachings of Manhas and Antens are described supra.
Therefore, it would have been prima facie obvious to one of ordinary skill in the
art, before the effective filing date of the claimed invention to have included trans-2-hexenoic acid as the aliphatic acid and to include surfactants including an alcohol ethoxylate surfactant such as Biosoft N1-5 in an emulsion form where the acid is in an amount at about 156.25 ppm and 68%. Synergistic pesticidal compositions in emulsion form are known from Manhas and comprise components including azoxystrobin, trans-2-hexenoic acid (in the amounts listed above) and ethoxylate alcohols and Biosoft N1-5 (a linear alcohol ethoxylate) is known from Antens as a suitable surfactant for agrochemical compositions. Thus, it would have been obvious to include these components and amounts in the composition of the reference patent as their combination merely represents known agrochemical components combined for an agrochemical composition.
Regarding the limitation of claims 1, 8 and 59 that the non-ionic surfactant is effective to increase penetration of the pesticidal active and the acid across a waxy plant cuticle, the examiner notes that this limitation merely describes the function of the surfactant and does not further limit beyond which type of surfactant is in the composition. Claim 11 recites Biosoft N1-5 as a species of surfactant that meets this limitation and the instant specification provides evidence of synergistic improvement with Biosoft N1-5 (e.g. Tables 1 and 2). Thus, the Biosoft N1-5, rendered obvious from the art, meets the species of surfactant required by the functional limitation of the instant claims. The examiner notes that products 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. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
Claims 1, 2, 7, 8, 11, 16, 17, 19, 22, 26, 59, and 71 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 and 17-22 of U.S. Patent No. 11,839,212 in view of Manhas et al. (WO2019064283, published 04 Apr 2019, listed on IDS filed 25 Oct 2024), Antens et al. (US 2011/0302975, published 15 Dec 2011) and evidenced by the instant specification.
The reference patent recites a pesticidal composition comprising an insecticidal active ingredien, and a C6-C10 unsaturated aliphatic acid, where the active and acid are in a ratio of 1:1 to 1:15,000.
The reference patent does not recite the active azoxystrobin or a non-ionic surfactant such as a linear alcohol ethoxylate, does not recite the aliphatic acid of trans-2-hexenoic acid, the concentration of aliphatic acid as in claim 19, the form of an emulsion or the percentage of acid.
These deficiencies are made up for in the teachings of Manhas and Antens.
The teachings of Manhas and Antens are described supra.
Therefore, it would have been prima facie obvious to one of ordinary skill in the
art, before the effective filing date of the claimed invention to have included azoxystrobin as the active and trans-2-hexenoic acid as the aliphatic acid and to include surfactants including an alcohol ethoxylate surfactant such as Biosoft N1-5 in an emulsion form where the acid is in an amount at about 156.25 ppm and 68%. Synergistic pesticidal compositions in emulsion form are known from Manhas and comprise components including azoxystrobin, trans-2-hexenoic acid (in the amounts listed above) and ethoxylate alcohols and Biosoft N1-5 (a linear alcohol ethoxylate) is known from Antens as a suitable surfactant for agrochemical compositions. Thus, it would have been obvious to include these components and amounts in the composition of the reference patent as their combination merely represents known agrochemical components combined for an agrochemical composition.
Regarding the limitation of claims 1, 8 and 59 that the non-ionic surfactant is effective to increase penetration of the pesticidal active and the acid across a waxy plant cuticle, the examiner notes that this limitation merely describes the function of the surfactant and does not further limit beyond which type of surfactant is in the composition. Claim 11 recites Biosoft N1-5 as a species of surfactant that meets this limitation and the instant specification provides evidence of synergistic improvement with Biosoft N1-5 (e.g. Tables 1 and 2). Thus, the Biosoft N1-5, rendered obvious from the art, meets the species of surfactant required by the functional limitation of the instant claims. The examiner notes that products 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. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
Claims 1, 2, 7, 8, 11, 16, 17, 19, 22, 26, 59, and 71 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 4, 5, 12, 13, 26, 27, 33, 25, and 45-50 of copending Application No. 17/280,144 in view of Manhas et al. (WO2019064283, published 04 Apr 2019, listed on IDS filed 25 Oct 2024), Antens et al. (US 2011/0302975, published 15 Dec 2011) and evidenced by the instant specification.
The reference application recites a synergistic pesticidal composition comprising active ingredient such as azoxystrobin, and a C4-C10 aliphatic acid, such as a trans hexenoic acid (claim 5), where the active and acid are in a ratio of 1:100 to 10:1.
The reference application does not recite a non-ionic surfactant such as a linear alcohol ethoxylate, does not recite the aliphatic acid of trans-2-hexenoic acid, the concentration of aliphatic acid as in claim 19, the form of an emulsion or the percentage of acid.
These deficiencies are made up for in the teachings of Manhas and Antens.
The teachings of Manhas and Antens are described supra.
Therefore, it would have been prima facie obvious to one of ordinary skill in the
art, before the effective filing date of the claimed invention to have included trans-2-hexenoic acid as the aliphatic acid and to include surfactants including an alcohol ethoxylate surfactant such as Biosoft N1-5 in an emulsion form where the acid is in an amount at about 156.25 ppm and 68%. Synergistic pesticidal compositions in emulsion form are known from Manhas and comprise components including azoxystrobin, trans-2-hexenoic acid (in the amounts listed above) and ethoxylate alcohols and Biosoft N1-5 (a linear alcohol ethoxylate) is known from Antens as a suitable surfactant for agrochemical compositions. Thus, it would have been obvious to include these components and amounts in the composition of the reference application as their combination merely represents known agrochemical components combined for an agrochemical composition.
Regarding the limitation of claims 1, 8 and 59 that the non-ionic surfactant is effective to increase penetration of the pesticidal active and the acid across a waxy plant cuticle, the examiner notes that this limitation merely describes the function of the surfactant and does not further limit beyond which type of surfactant is in the composition. Claim 11 recites Biosoft N1-5 as a species of surfactant that meets this limitation and the instant specification provides evidence of synergistic improvement with Biosoft N1-5 (e.g. Tables 1 and 2). Thus, the Biosoft N1-5, rendered obvious from the art, meets the species of surfactant required by the functional limitation of the instant claims. The examiner notes that products 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. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
This is a provisional nonstatutory double patenting rejection.
Claims 1, 2, 7, 8, 11, 16, 17, 19, 22, 26, 59, and 71 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 4, 5, 8, 12, 13, 21, 23, 25-28, and 34-36 of copending Application No. 17/281,210 in view of Manhas et al. (WO2019064283, published 04 Apr 2019, listed on IDS filed 25 Oct 2024), Antens et al. (US 2011/0302975, published 15 Dec 2011) and evidenced by the instant specification.
The reference application recites a synergistic fungicidal composition comprising active ingredient and a C4-C10 aliphatic acid, such as a trans hexenoic acid (claim 5), where the active and acid are in a ratio of 1:100 to 10:1.
The reference application does not recite azoxystrobin, a non-ionic surfactant such as a linear alcohol ethoxylate, does not recite the aliphatic acid of trans-2-hexenoic acid, the concentration of aliphatic acid as in claim 19, the form of an emulsion or the percentage of acid.
These deficiencies are made up for in the teachings of Manhas and Antens.
The teachings of Manhas and Antens are described supra.
Therefore, it would have been prima facie obvious to one of ordinary skill in the
art, before the effective filing date of the claimed invention to have included azoxystrobin as an active and trans-2-hexenoic acid as the aliphatic acid and to include surfactants including an alcohol ethoxylate surfactant such as Biosoft N1-5 in an emulsion form where the acid is in an amount at about 156.25 ppm and 68%. Synergistic pesticidal compositions in emulsion form are known from Manhas and comprise components including azoxystrobin, trans-2-hexenoic acid (in the amounts listed above) and ethoxylate alcohols and Biosoft N1-5 (a linear alcohol ethoxylate) is known from Antens as a suitable surfactant for agrochemical compositions. Thus, it would have been obvious to include these components and amounts in the composition of the reference application as their combination merely represents known agrochemical components combined for an agrochemical composition.
Regarding the limitation of claims 1, 8 and 59 that the non-ionic surfactant is effective to increase penetration of the pesticidal active and the acid across a waxy plant cuticle, the examiner notes that this limitation merely describes the function of the surfactant and does not further limit beyond which type of surfactant is in the composition. Claim 11 recites Biosoft N1-5 as a species of surfactant that meets this limitation and the instant specification provides evidence of synergistic improvement with Biosoft N1-5 (e.g. Tables 1 and 2). Thus, the Biosoft N1-5, rendered obvious from the art, meets the species of surfactant required by the functional limitation of the instant claims. The examiner notes that products 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. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
This is a provisional nonstatutory double patenting rejection.
Claims 1, 2, 7, 8, 11, 16, 17, 19, 22, 26, 59, and 71 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 10, 11, 13, 16-18, 30, 31, 33, 34, 36, and 40 of copending Application No. 18/695,760 in view of Manhas et al. (WO2019064283, published 04 Apr 2019, listed on IDS filed 25 Oct 2024), Antens et al. (US 2011/0302975, published 15 Dec 2011) and evidenced by the instant specification.
The reference application recites a pesticidal composition comprising a ryanodine receptor modulator active and a C4-C12 aliphatic acid, such as a trans hexenoic acid (claim 13), where the active and acid are in a ratio of 1:15,000 to 15,000:1.
The reference application does not recite the active azoxystrobin, a non-ionic surfactant such as a linear alcohol ethoxylate, does not recite the aliphatic acid of trans-2-hexenoic acid, the concentration of aliphatic acid as in claim 19, the form of an emulsion or the percentage of acid.
These deficiencies are made up for in the teachings of Manhas and Antens.
The teachings of Manhas and Antens are described supra.
Therefore, it would have been prima facie obvious to one of ordinary skill in the
art, before the effective filing date of the claimed invention to have included azoxystrobin as an active and trans-2-hexenoic acid as the aliphatic acid and to include surfactants including an alcohol ethoxylate surfactant such as Biosoft N1-5 in an emulsion form where the acid is in an amount at about 156.25 ppm and 68%. Synergistic pesticidal compositions in emulsion form are known from Manhas and comprise components including azoxystrobin, trans-2-hexenoic acid (in the amounts listed above) and ethoxylate alcohols and Biosoft N1-5 (a linear alcohol ethoxylate) is known from Antens as a suitable surfactant for agrochemical compositions. Thus, it would have been obvious to include these components and amounts in the composition of the reference application as their combination merely represents known agrochemical components combined for an agrochemical composition.
Regarding the limitation of claims 1, 8 and 59 that the non-ionic surfactant is effective to increase penetration of the pesticidal active and the acid across a waxy plant cuticle, the examiner notes that this limitation merely describes the function of the surfactant and does not further limit beyond which type of surfactant is in the composition. Claim 11 recites Biosoft N1-5 as a species of surfactant that meets this limitation and the instant specification provides evidence of synergistic improvement with Biosoft N1-5 (e.g. Tables 1 and 2). Thus, the Biosoft N1-5, rendered obvious from the art, meets the species of surfactant required by the functional limitation of the instant claims. The examiner notes that products 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. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
This is a provisional nonstatutory double patenting rejection.
Claims 1, 2, 7, 8, 11, 16, 17, 19, 22, 26, 59, and 71 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 6, 9, 1-14, 26, 27, 33, 40, 44, 49, and 51 of copending Application No. 19/396,124 in view of Manhas et al. (WO2019064283, published 04 Apr 2019, listed on IDS filed 25 Oct 2024), Antens et al. (US 2011/0302975, published 15 Dec 2011) and evidenced by the instant specification.
The reference application recites a synergistic pesticidal composition comprising active ingredient, such as an azole, and a C6-C10 aliphatic acid, where the active and acid are in a ratio of 1:15,000 to 15,000:1.
The reference application does not recite the active azoxystrobin, a non-ionic surfactant such as a linear alcohol ethoxylate, does not recite the aliphatic acid of trans-2-hexenoic acid, the concentration of aliphatic acid as in claim 19, the form of an emulsion or the percentage of acid.
These deficiencies are made up for in the teachings of Manhas and Antens.
The teachings of Manhas and Antens are described supra.
Therefore, it would have been prima facie obvious to one of ordinary skill in the
art, before the effective filing date of the claimed invention to have included azoxystrobin as an active and trans-2-hexenoic acid as the aliphatic acid and to include surfactants including an alcohol ethoxylate surfactant such as Biosoft N1-5 in an emulsion form where the acid is in an amount at about 156.25 ppm and 68%. Synergistic pesticidal compositions in emulsion form are known from Manhas and comprise components including azoxystrobin, trans-2-hexenoic acid (in the amounts listed above) and ethoxylate alcohols and Biosoft N1-5 (a linear alcohol ethoxylate) is known from Antens as a suitable surfactant for agrochemical compositions. Thus, it would have been obvious to include these components and amounts in the composition of the reference application as their combination merely represents known agrochemical components combined for an agrochemical composition.
Regarding the limitation of claims 1, 8 and 59 that the non-ionic surfactant is effective to increase penetration of the pesticidal active and the acid across a waxy plant cuticle, the examiner notes that this limitation merely describes the function of the surfactant and does not further limit beyond which type of surfactant is in the composition. Claim 11 recites Biosoft N1-5 as a species of surfactant that meets this limitation and the instant specification provides evidence of synergistic improvement with Biosoft N1-5 (e.g. Tables 1 and 2). Thus, the Biosoft N1-5, rendered obvious from the art, meets the species of surfactant required by the functional limitation of the instant claims. The examiner notes that products 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. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
This is a provisional nonstatutory double patenting rejection.
Conclusion
No claim is allowed.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EDWIN C MITCHELL whose telephone number is (571)272-7007. The examiner can normally be reached Mon-Fri 8:00-5:00.
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/EDWIN COLEMAN MITCHELL/Examiner, Art Unit 1619
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