DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Claims
Claims 1 – 36 are pending.
Claims 1 – 7, 15 – 17 and 19 – 23 are rejected.
Claims 8 – 14, 18 and 24 – 36 are withdrawn.
Election/Restriction
Applicants’ election with traverse of Group I in the reply filed on August 4, 2026 is acknowledged. However, Applicant do not provide remarks with respect to the traversal. Further, Applicant has specifically elected metalaxyl (fungicide) as the agrochemical.
Examination: Claims 1 – 7, 15 – 17 and 19 – 23 read on the elected species. The elected invention is not allowable over the prior art. However, in the interest of compact prosecution, the search has been further extended to include the scope, wherein the agrochemical is tebuconazole (fungicide). Subject matter not embraced by the elected embodiment or the scope searched is therefore withdrawn from further consideration Claims 8 – 14, 18 and 24 – 36 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Priority
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Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement filed May 21, 2024 fails to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited non-patent literature publication:
Cite No. 2 – K.G. Rohrbach and S. Schenck, “Control of pineapple heart rot, caused by Phytophthora parasitica and P. cinnamomic, with metalaxyl, fosetyl Al, and phosphorous acid”, Plant Disease, 1984, vol. 69, no. 4, pg. 320-323,
or that portion which caused it to be listed; and all other information or that portion which caused it to be listed. It has been placed in the application file, but the information referred to therein has not been considered.
Claim Objections
Claim 22 is objected to because of the following informalities:
Lines 1 – 3 of the claim: The limitation “… agrochemically acceptable excipient are selected from the group consisting of surfactants… preservative, colorant, filler and combinations thereof” is grammatically incorrect because it does not recite proper plural form and Markush group language for the group of alternatives. In order to overcome the objection, Applicant may amend the limitation as follows: “… agrochemically acceptable excipient isfrom the group consisting of surfactant and filler, or.
Appropriate correction is required.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 5 – 6, 15 – 17 and 22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Junmin et al. CN104447076 A, cited in IDS dated May 21, 2024, as evidenced by English translation of CN104447076 A, https://worldwide.espacenet.com/publicationDetails/ description?CC=CN&NR=104447076A&KC=A&FT=D&ND=3&date=20150325&DB=EPODOC&locale=en_EP, Accessed on August 22, 2026.
Junmin et al. teach slow-release granules comprising 1% wt. flonicamid, 0.02% wt. tebuconazole (fungicide) (50:1 weight ratio), and macronutrient, medium-element, micronutrient and selenium fertilizers (agrochemically acceptable excipients). See attached English translation, e.g., Example 2, paragraphs [0144]-[0153].
Therefore, the prior art anticipates the instant claims.
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.
Claims 1 – 7, 15 – 17 and 19 – 22 are rejected under 35 U.S.C. 103 as being unpatentable over Junmin et al. CN104447076 A, cited in IDS dated May 21, 2024, as evidenced by English translation of CN104447076 A, https://worldwide.espacenet.com/publicationDetails/description? CC=CN&NR=104447076A&KC=A&FT=D&ND=3&date=20150325&DB=EPODOC&locale=en_EP, Accessed on August 22, 2026, in view of Wegulo, CropWatch, University of Nebraska-Lincoln, September 1, 2020, https://cropwatch.unl.edu/2020/reducing-yield-loss-wheat-through-fungicide-seed-treatments/, Accessed on August 22, 2026.
Determining the scope and contents of the prior art
Junmin et al. teach slow-release granules comprising 1% wt. flonicamid, 0.02% wt. tebuconazole (fungicide) (50:1 weight ratio), and macronutrient, medium-element, micronutrient and selenium fertilizers (agrochemically acceptable excipients). See attached English translation, e.g., Example 2, paragraphs [0144]-[0153].
Ascertaining the differences between the prior art and the claims at issue
Compared to instant claims, Junmin does not explicitly teach that the nutrient composition comprises metalaxyl as the fungicide, as elected by the Applicant, instead of tebuconazole.
Rationale for a prima facie case of obviousness
According to MPEP §2141(III), two of the rationales in the KSR decision states “(E) “Obvious to try” – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success”… (G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention”. KSR, 550 U.S. at 418, 82 USPQ2d at 1396. Wegulo states that fungicide seed treatments “help to reduce losses caused by seed transmitted and soilborne fungal diseases of wheat… [s]ome systemic seed treatment products contain a fungicide and an insecticide and offer additional protection against fall season foliar diseases and insects such as aphids which also transmit barley yellow dwarf virus”. See, e.g., pg. 1, 1st paragraph. Wegulo teaches strategies to manage seed transmitted fungal diseases including fungicide seed treatment. See, e.g., pg. 3, 3rd – 5th paragraphs. The wheat seed fungicides include systemic fungicides such as 28.3% tebuconazole, 12.5% metalaxyl, 17.7% metalaxyl and 28.25% metalaxyl. See, e.g., pg. 3-6, Table 1. Wegulo emphasizes the importance of using clean, certified, fungicide treated seed to optimize the “chances of obtaining high yields” and grain quality. See, pg. 6-7, bridging paragraph. Thus, Wegulo identifies a finite number of specific fungicides, such as tebuconazole and metalaxyl, can be used to prepare the pharmaceutical compositions.
A person having ordinary skill in the art would have been motivated to perform routine experimentation, such as using metalaxyl as a fungicide instead of tebuconazole, to prepare and optimize the nutrient composition as taught by Junmin et al. The purpose of the routine experimentation would have been to determine fungicide would be optimal to increase rice yield without increasing the use of the amount of composition. The PHOSITA would have an expectation of success in preparing such nutrient composition comprising flonicamid as the insecticide and metalaxyl as the fungicide in order to improve plant growth.
With respect to claims 2 – 4 and 19 – 21, MPEP §2144.05(II)(A) states:
“Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)”.
In the instant case, Junmin teaches a 50:1 weight ratio of 1% wt. flonicamid, and 0.02% wt. tebuconazole in the nutrient composition. Since Junmin also teaches that the weight ratio in some embodiments can be adjusted (see, e.g., paragraph [0032]), the PHOSITA would been motivated to use the weight ratio of flonicamid, and tebuconazole as a good starting point to perform routine experimentation and determine the optimum concentration in the nutrient composition.
Therefore, the teachings of Junmin et al. CN104447076 A and Wegulo render the instant claims prima facie obvious.
Claims 15 – 17 and 22 – 23 are rejected under 35 U.S.C. 103 as being unpatentable over Junmin et al. CN104447076 A in view of Sakamoto et al. EP2606729 A1, cited in IDS dated May 21, 2024.
Determining the scope and contents of the prior art
Junmin et al. teach slow-release granules comprising 1% wt. flonicamid, 0.02% wt. tebuconazole (fungicide) (50:1 weight ratio), and macronutrient, medium-element, micronutrient and selenium fertilizers (agrochemically acceptable excipients). See attached English translation, e.g., Example 2, paragraphs [0144]-[0153].
Ascertaining the differences between the prior art and the claims at issue
Junmin et al. anticipate the instant claims 15 – 17 and 22. Compared to claim 23, Junmin does not explicitly teach that the composition is present in a form of a suspension concentrate, which is the basis of obviousness.
Rationale for a prima facie case of obviousness
According to MPEP §2141(III), one of the rationales in the KSR decision states “(G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention”. KSR, 550 U.S. at 418, 82 USPQ2d at 1396. Sakamoto et al. teach a harmful arthropod control composition comprising flonicamid, other plant disease control compounds, inert carrier, and optionally a surfactant and/or other formulation additives. The composition can be prepared into a formulation including an oil solution, an emulsifiable concentrate and a suspension concentration. See, e.g., paragraph [0010]. Specifically, Sakamoto teaches that Formulation Examples 7 – 9 are formulated in the form of a suspension concentrate. See, e.g., paragraphs [0038] – [0040]. Sakamoto provides guidance that compositions comprising flonicamid can be formulated in the form of suspension concentrates. The PHOSITA would have motivated to perform routine experimentation, such as a suspension concentrate, to prepare and optimize the nutrient composition as taught by Junmin et al. The purpose of the routine experimentation would have been to optimize and increase the efficacy of the nutrient composition. The PHOSITA would have an expectation of success in preparing such nutrient composition in the form of suspension concentrates in order to improve plant growth.
Therefore, the teachings of Junmin et al. CN104447076 A and Sakamoto et al. EP2606729 A1 render the instant claim prima facie obvious.
Conclusion
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/Sagar Patel/Examiner, Art Unit 1626
/MATTHEW P COUGHLIN/Primary Examiner, Art Unit 1626
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