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 .
Election/Restrictions
Acknowledgement is made to Applicant’s response filed 06/15/2026.
Claims 1-15 are pending.
Claim 15 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected groups and species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 06/15/2026.
Claims 1-14 are currently under consideration to the extent that they read upon Applicant’s elected species.
NOTE: Applicant elected –
cetyl (10 EO, 5 PO) mono ester phosphate for the C10 to C30 alkoxylated mono- and/or di-ester phosphate (see Claims 8 and 9);
non-ionic polymethyl methacrylate-polyethylene oxide graft copolymer for the non-ionic graft copolymer of acrylic ester and oxyalkylene (see Claim 11);
flufenacet for the hydrophobic solid agrochemical active (see Claim 12);
acrylic acid for the acrylic acid monomer (see Claims 2 and 3);
styrene for the hydrophobic monomer (see Claim 4);
C1-C6 alkyl substituted styrene (if necessary, a-methyl styrene) for the vinyl aromatic monomer (see Claim 5);
methoxy polyethylene glycol methacrylate (MPEGMA) for the alkylacrylate of a monoalkyl polyethylene glycol (see Claim 6); and
acrylamido methyl propyl sulphonate (AMPS) for the strong acid derivative of (meth)acrylic acid (see Claim 7).
Upon further search and examination, the species election over agrochemical active is broadened to include metribuzin; azole fungicides difenoconazole, cyproconazole, prothioconazole; or insecticides buprofezin or azoxystrobin. The phosphate ester is broadened to include cetyl (10 EO, 5 PO) mono ester phosphate, cetyl (10 EO, 5 PO) di ester phosphate, stearyl (10 EO, 5 PO) mono ester phosphate, stearyl (10 EO, 5 PO) di ester phosphate, tridecyl (6 EO) mono ester phosphate, tridecyl (6 EO) di ester phosphate, castor oil (12 EO) mono phosphate, and castor oil (12 EO) di phosphate. The acrylic acid monomer is broadened to include acrylic acid, methacrylic acid, crotonic acid, or a mixture thereof. Vinyl aromatic monomer is broadened to include styrene or an alkyl substituted styrene. The strong acid is broadened to include derivatives of (meth)acrylic acid is selected from acrylamido methyl propyl sulphonate (AMPS) or (meth)acrylic acid isethionate.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 05/08/2024 is being considered by the examiner. The submission is in compliance with the provisions of 37 CFR 1.97.
Claim Objections
Claim 12 is objected to because of the following informalities: Claim 12 recites "azoles fungicides" which is a minor informality because it appears to be a typo of 'azole fungicides'.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 1 is 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.
Regarding claim 1, the word "type" renders the claim(s) indefinite because the addition of the word "type" to an otherwise definite expression extends the scope of the expression so as to render it indefinite. See MPEP § 2173.05(e). Claims 2-14 are rejected as depending from claim 1 without resolving the issue.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 13 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. There is no structural or functional difference between the components of claim 1 and claim 13.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claim(s) 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Knight et al (US 20210029989 A1 also available as WO 2019185851 A1 ; as submitted on IDS of 05/08/2024) and Lindner et al (US 20180125064 A1).
Knight discloses a copolymer dispersant having acrylic acid, hydrophobic monomer, alkylacrylate of a monoalkyl polyethylene glycol, and optionally strong acid derivatives of (meth)acrylic acid combined with agrochemical active and/or nutrient and/or biostimulant to form a formulation (see entire document, for instance, abstract). Knight teaches an agrochemical formulation comprising; i) a copolymer dispersant comprising a polymer of acrylic acid, hydrophobic monomer, alkylacrylate of a monoalkyl polyethylene glycol, and optionally strong acid derivatives of (meth)acrylic acid; and ii) at least one agrochemical active and/or nutrient and/or biostimulant (see entire document, for instance, claim 1). Knight discloses the acrylic acid monomer used to form the copolymer is selected from (meth)acrylic acid or salts thereof, (meth)acrylamide, (meth)acrylonitrile, C1-6-alkyl (meth)acrylates, substituted C1-6-alkyl (meth)acrylates, di(C1-4-alkylamino) C1-6-alkyl (meth) acrylates, amides formed from C1-6-alkylamines, substituted C1-6-alkyl-amines, or di(C1-4-alkyl-amino)C1-6-alkylamines, and (meth)acrylic acid (see entire document, for instance, claim 2). Knight teaches the solid granular form of the agrochemical formulations when dispersed in water(see entire document, for instance,[0049] ). Knight discloses the hydrophobic monomer is selected from hydrophobic alkyl (meth)acrylates, styrenes, and vinyl compounds, and vinyl aromatic monomers (see entire document, for instance, claim 3). Knight teaches wherein the alkylacrylate of a monoalkyl polyethylene glycol is a methoxy polyethylene glycol methacrylate (MPEGMA) (see entire document, for instance, claim 4). Knight discloses the Strong acid derivatives of (meth)acrylic acid are selected from sodium methallyl sulphonate, sodium styrene sulphonate, acrylamido methyl propyl sulphonate (AMPS) and (meth)acrylic acid isethionate (see entire document, for instance, claim 5). Knight teaches the copolymer molecular weight is in the range from 5,000 to 75,000 Daltons (see entire document, for instance, claim 6). Knight discloses the biocides for use in agrochemical formulations of the present invention are typically divided into two sub-groups: pesticides, including fungicides, herbicides, insecticides, algicides, moluscicides, miticides and rodenticides, and antimicrobials, including germicides, antibiotics, antibacterials, antivirals, antifungals, antiprotozoals and antiparasites (see entire document, for instance [0091]-[0105]). Knight teaches flufenacet, metribuzin, difenoconazole, cyproconazole, prothioconazole, buprofezin,azoxystrobin ([0099], [0097], [0101]). However, they do not expressly disclose including a C10 to C30 alkoxylated mono- and/or di-ester phosphate nor non-ionic graft copolymer of acrylic ester and oxyalkylene is non-ionic polymethyl methacrylate-polyethylene oxide graft copolymer. Lindner et al remedy this deficiency.
Lindner discloses agrochemical emulsion-type concentrates and diluted concentrate formulations (see entire document, for instance, abstract). Lindner teaches the oxyalkylene groups (AO) may be selected from groups of the formula —(C.sub.yH.sub.2yO)— where y is an integer selected from 2, 3, or 4. Preferably, y is 2 or 3 (see entire document, for instance, [0059] ). The oxyalkylene group is selected from oxyethylene (ED) and/or oxypropylene (PO) ([0060] ). Lindner discloses alkoxylated fatty alcohol phosphates where carbon chain length preferably is at least 8 (branched or linear, saturated or unsaturated), more preferably between 8 and 22, and most preferably between 12 and 18—examples include Multitrope 1214, Crodafos D4A, Crodafos T6A, Crodafos 010A, Crodafos SG (PPG-5-Ceteth-10 Phosphate), and Crodafos CS2A (Polyoxyethylene alkyl ether phosphate (mono/di-esters)) ([0084] ). Lindner teaches agrochemical actives refer to biocides which, in the context of the present invention, are plant protection agents, more particular chemical substances capable of killing different forms of living organisms used in fields such as medicine, agriculture, forestry, and mosquito control ([0122]). Lindner discloses azoxystrobin, cyproconazole, difenoconazole, prothioconazole (see entire document, for instance, [0129], [0148] ). Lindner teaches surfactants which may be included to aid dispersion of the active in the oil include polymeric dispersants such as those available from Croda, including Atlox 4914 ( non-ionic graft copolymer of an acrylic ester and an oxyalkylene ) ([0188]).
It would have been obvious to utilize a C10 to C30 alkoxylated mono- and/or di-ester phosphate and non-ionic polymethyl methacrylate-polyethylene oxide graft copolymer as taught in Lindner in the composition of Knight. One would have been motivated to do so Lindner teaches that surfactant is particularly useful for imparting to aid dispersion of the active in the oil and for stable emulsion concentrates over time and under varying storage temperatures. There would be a reasonable expectation of success since Knight and Lindner are both drawn to agrochemical compositions.
Claim(s) 1-7, 9-10, and 12-14are rejected under 35 U.S.C. 103 as being unpatentable over Knight et al (US 20210029989 A1 also available as WO 2019185851 A1 ; as submitted on IDS of 05/08/2024) and Knight et al (US 20220396734 A1 also available as WO2021094594A1; referred to as Knight’22 herein).
Knight discloses a copolymer dispersant having acrylic acid, hydrophobic monomer, alkylacrylate of a monoalkyl polyethylene glycol, and optionally strong acid derivatives of (meth)acrylic acid combined with agrochemical active and/or nutrient and/or biostimulant to form a formulation (see entire document, for instance, abstract). Knight teaches an agrochemical formulation comprising; i) a copolymer dispersant comprising a polymer of acrylic acid, hydrophobic monomer, alkylacrylate of a monoalkyl polyethylene glycol, and optionally strong acid derivatives of (meth)acrylic acid; and ii) at least one agrochemical active and/or nutrient and/or biostimulant (see entire document, for instance, claim 1). Knight discloses the acrylic acid monomer used to form the copolymer is selected from (meth)acrylic acid or salts thereof, (meth)acrylamide, (meth)acrylonitrile, C1-6-alkyl (meth)acrylates, substituted C1-6-alkyl (meth)acrylates, di(C1-4-alkylamino) C1-6-alkyl (meth) acrylates, amides formed from C1-6-alkylamines, substituted C1-6-alkyl-amines, or di(C1-4-alkyl-amino)C1-6-alkylamines, and (meth)acrylic acid (see entire document, for instance, claim 2). Knight teaches the solid granular form of the agrochemical formulations when dispersed in water (see entire document, for instance, [0049] ). Knight discloses the hydrophobic monomer is selected from hydrophobic alkyl (meth)acrylates, styrenes, and vinyl compounds, and vinyl aromatic monomers (see entire document, for instance, claim 3). Knight teaches wherein the alkylacrylate of a monoalkyl polyethylene glycol is a methoxy polyethylene glycol methacrylate (MPEGMA) (see entire document, for instance, claim 4). Knight discloses the Strong acid derivatives of (meth)acrylic acid are selected from sodium methallyl sulphonate, sodium styrene sulphonate, acrylamido methyl propyl sulphonate (AMPS) and (meth)acrylic acid isethionate (see entire document, for instance, claim 5). Knight teaches the copolymer molecular weight is in the range from 5,000 to 75,000 Daltons (see entire document, for instance, claim 6). Knight discloses the biocides for use in agrochemical formulations of the present invention are typically divided into two sub-groups: pesticides, including fungicides, herbicides, insecticides, algicides, moluscicides, miticides and rodenticides, and antimicrobials, including germicides, antibiotics, antibacterials, antivirals, antifungals, antiprotozoals and antiparasites (see entire document, for instance [0091]-[0105]). Knight teaches flufenacet, metribuzin, difenoconazole, cyproconazole, prothioconazole, buprofezin,azoxystrobin ([0099], [0097], [0101]). However, they do not expressly disclose including a C10 to C30 alkoxylated mono- and/or di-ester phosphate. Knight’22 et al remedy this deficiency.
Knight’22 discloses a soil treatment formulation having an ethoxylated/propoxylated fatty acid mono-esters of sorbitan, ethylene oxide-propylene oxide copolymer, and compatibilising surfactant selected from an alkoxylated fatty alcohol, alkoxylated fatty alcohol phosphate ester, and/or alkoxylated glycerides (see entire document, for instance, abstract). Knight’22 teaches the soil treatment composition is suitable for use in improving the water retention and/or conditioning of soil (see entire document, for instance, abstract). Knight’22 discloses compatibilising surfactant selected from an alkoxylated fatty alcohol, alkoxylated fatty alcohol phosphate ester, and/or alkoxylated glycerides (see entire document, for instance, claim 1). Knight’22 teaches the compatibilising surfactant is alkoxylated fatty alcohol having a C.sub.4 to C.sub.30 fatty chain and comprising from 1 to 30 oxyalkylene groups (see entire document, for instance, claim 5). Knight’22 teaches the C.sub.4 to C.sub.30 hydrocarbyl may preferably be selected from a C.sub.4 to C.sub.30 alkyl or a C.sub.4 to C.sub.30 alkenyl ([0066] ).The term ‘alkyl’ as used herein, unless otherwise defined, refers to saturated hydrocarbon radicals being straight chain, branched, or combinations thereof, containing from 4 to 30 carbon atoms ([0067]). Examples of alkyl radicals may be independently selected from methyl, ethyl, propyl, butyl, pentyl, hexyl, heptyl, octyl, nonyl, decyl, undecyl, dodecyl, tridecyl, tetradecyl, pentadecyl, hexadecyl, heptadecyl, octadecyl, nonadecyl, eicosyl, henicosyl, docosyl, tricosyl, tetracosyl, pentacosyl, hexacosyl, heptacosyl, octacosyl, or branched variants thereof [0068]. Knight’22 discloses alkoxylated fatty alcohol phosphate esters, preferably C10 to C30 mono- and/or di-ester phosphates ([0086]). Knight’22 teaches the concentrate may be diluted with water ([0112]). Knight’22 discloses metribuzin, flufenacet, azoxystrobin, cyproconazole, difenoconazole, prothioconazole, ([0142]- [0144] ).
It would have been obvious to utilize a C10 to C30 alkoxylated mono- and/or di-ester phosphate as taught in Knight’22 in the composition of Knight. One would have been motivated to do so Knight’22 teaches that C10 to C30 alkoxylated mono- and/or di-ester phosphate is particularly useful for imparting improving the water retention and/or conditioning of soil in a composition. There would be a reasonable expectation of success since Knight and Knight’22 are both drawn to compositions for agrochemical active formulations.
Claim(s) 1-7 and 9-14 are rejected under 35 U.S.C. 103 as being unpatentable over Knight et al (US 20210029989 A1 also available as WO 2019185851 A1 ; as submitted on IDS of 05/08/2024) and Knight et al (US 20220396734 A1 also available as WO2021094594A1; referred to as Knight’22 herein) as applied to claims 1-7,9-10, and 12-14 above, and further in view of BLEASE (US 20150289502 A1).
The teachings of Knight and Knight’22 et al have been set forth above. Knight and Knight’22 disclose the composition. However, they do not expressly disclose including the non-ionic graft copolymer of acrylic ester and oxyalkylene is non-ionic polymethyl methacrylate-polyethylene oxide graft copolymer.
BLEASE et al remedy this deficiency. BLEASE discloses an agrochemical formulation comprising a penetrant and an agrochemical active (see entire document, for instance, abstract). BLEASE teaches the penetrant is an esterified and/or etherified polyol alkoxylate obtainable by directly esterifying and/or etherifying a polyol alkoxylate (see entire document, for instance, abstract). There is also provided a method of making the penetrant comprising alkoxylation of a polyol, and esterification or etherification of the formed poyol alkoxylate (see entire document, for instance, abstract). BLEASE teaches the oxyalkylene group AO may be selected from oxyethylene, oxypropylene, oxybutylene (see entire document, for instance, [0053] ). BLEASE discloses azoxystrobin, cyproconazole, difenoconazole, prothioconazole ([0153] -[0176] ). BLEASE discloses Atlox 4913 (a non-ionic polymethyl methacrylate-polyethylene oxide graft copolymer) and Atlas G-5002L, both sold by Croda Europe Limited), water (see entire document, for instance, Table 2)
It would have been obvious to utilize Atlox 4913 ( a non-ionic polymethyl methacrylate-polyethylene oxide graft copolymer) as taught in BLEASE in the composition of Knight and Knight’22 . One would have been motivated to do so BLEASE teaches that this enables the production of more defined, cleaner, and/or purer products ([0033]). There would be a reasonable expectation of success since Knight and Knight’22 and BLEASE are both drawn to compositions for agrochemical formulation.
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 1-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of copending Application No. 18/029,531 (reference application) in view of Lindner et al (US 20180125064 A1). Although the claims at issue are not identical, they are not patentably distinct from each other. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
The copending claims are directed to a composition comprising a suspension type water medium agrochemical formulation comprising:i) a copolymer dispersant comprising a copolymer of acrylic acid, a hydrophobic monomer, an alkylacrylate of a monoalkyl polyethylene glycol, and optionally strong acid derivatives of (meth)acrylic acid;ii) a non-ionic polymethyl methacrylate-polyethylene oxide graft copolymer;iii) at least one hydrophobic solid agrochemical active dispersed in the water medium.
However, the copending claims do not explicitly include a C10 to C30 alkoxylated mono- and/or di-ester phosphate.
Lindner discloses agrochemical emulsion-type concentrates and diluted concentrate formulations (see entire document, for instance, abstract). Lindner teaches the oxyalkylene groups (AO) may be selected from groups of the formula —(C.sub.yH.sub.2yO)— where y is an integer selected from 2, 3, or 4. Preferably, y is 2 or 3 (see entire document, for instance, [0059] ). The oxyalkylene group is selected from oxyethylene (ED) and/or oxypropylene (PO) ([0060] ). Lindner discloses alkoxylated fatty alcohol phosphates where carbon chain length preferably is at least 8 (branched or linear, saturated or unsaturated), more preferably between 8 and 22, and most preferably between 12 and 18—examples include Multitrope 1214, Crodafos D4A, Crodafos T6A, Crodafos 010A, Crodafos SG (PPG-5-Ceteth-10 Phosphate), and Crodafos CS2A (Polyoxyethylene alkyl ether phosphate (mono/di-esters)) ([0084] ). Lindner teaches agrochemical actives refer to biocides which, in the context of the present invention, are plant protection agents, more particular chemical substances capable of killing different forms of living organisms used in fields such as medicine, agriculture, forestry, and mosquito control ([0122]). Lindner discloses azoxystrobin, cyproconazole, difenoconazole, prothioconazole (see entire document, for instance, [0129], [0148] ).
It would have been obvious to utilize a C10 to C30 alkoxylated mono- and/or di-ester phosphate and non-ionic polymethyl methacrylate-polyethylene oxide graft copolymer as taught in Lindner. One would have been motivated to do so Lindner teaches that surfactant is particularly useful for imparting to aid dispersion of the active in the oil and for stable emulsion concentrates over time and under varying storage temperatures. There would be a reasonable expectation of success since Knight and Lindner are both drawn to agrochemical compositions.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANET JOSEPH whose telephone number is (571)270-1372. The examiner can normally be reached Monday and Thursday 0730-1730 Eastern.
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/JANET JOSEPH/Patent Examiner, Art Unit 1611
/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
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