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 .
Claims 1-15 are pending in this application.
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 3, 10, and 14 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.
(1) In claim 3, the parts enclosed in the boxes below are incomprehensible:
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One skilled in the art would not be able to determine the metes and bounds of the claimed acrylic graft copolymer from the claim language.
(2) Claim 10 recites an adjuvant and a preferable adjuvant. It is unclear whether the preferable feature is exemplary or limiting, and under what circumstance the preference would or would not apply.
(3) In claim 14, Cucurbitaceae, Solanaceae, and Malvaceae are family names, not order names. For example, watermelon is in the Cucurbitaceae family.
For these reasons, claims 3, 10, and 14 are indefinite.
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.
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 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over Muehlebach et al. (US 2011/0301031; hereinafter, Muehlebach ‘031) in view of Buchholz et al. (US 9,414,597; hereinafter, Buchholz), Heming et al. (US 2012/0070482; hereinafter, Heming), Muehlebach et al. (hereinafter, “Muehlebach 2020”)1, further in view of Morwet D-425 powder safety data sheet, and Bohus et al. (US 4,806,151; hereinafter, Bohus).
Muehlebach ‘031 discloses pesticidal compounds of formula (I) that encompass spiropidion. See paragraphs 4-12. Compound T1.067 is the enol form of the active dione form of spiropidion after cleavage –see page 15, Table 1 (see also Muehlebach 2020, below). In formula I of Muehlebach ‘031, G can be C(O)-O-ethyl to encompass spiropidion (paragraphs 4 and 12-13 in view of compound T1.067). Compounds bearing G, a latentiating group, can offer certain advantages such as improved penetration, compatibility, or stability (paragraph 11). Muehlebach’s compounds have insecticidal and acaricidal activity even at low rates of application (paragraph 210). Control of pests from the order Homoptera, Lepidoptera (paragraph 214), Thysanoptera (paragraph 216), and Acarina (paragraphs 210, 213) is disclosed, including white flies, mites, aphids, and thrips (paragraph 212). Protection of crops that belong to the Cucurbitaceae family such as cucumbers and melons, crops that belong to the Solanaceae family such as eggplant and tomato, and crops that belong to the Malvaceae family such as cotton, is disclosed (paragraph 218). Combination with another active ingredient, including abamectin (paragraph 301, part (g)), is disclosed for the advantages of broadened spectrum of activity, increased persistence, reduced phytotoxicity, control of insects in their different development stages, control of resistance development (paragraph 301).
Muehlebach ‘031 further teach formulation as a suspension concentrate (paragraphs 239, 274, 282-283), aqueous suspension concentrate (paragraphs 255-256), and oil-based suspension concentrate (paragraphs 257-258). Aqueous or non-aqueous suspension concentrates can contain dispersing agents, wetting agents, and suspending agents (paragraph 282). Additional auxiliaries include antifoams, stabilizers, preservatives (paragraph 264). Further suitable surface active ingredients include tris-(2-ethylhexyl) phosphate, bis-(2-ethylhexyl) phosphate, dibutyl-butyl phosphate (paragraph 246). Use of solvents such as propylene glycol is disclosed (paragraph 240-241). Broadly, aqueous suspension concentrate can contain 5-75% or 10-40% active ingredient, 1-40% or 2-30% surfactant, and 24-94% or 30-88% water (paragraphs 255-258). Example F8b is an aqueous suspension concentrate that contains (paragraph 442):
10% active ingredient,
2% naphthalenesulfonic acid, sodium salt, condensed with formaldehyde,
8% solution of an acrylic graft copolymer in water and propylene glycol,
0.5% silicone antifoam emulsion,
3% 1,2-propanediol (synonym for propylene glycol),
0.5% heteropolysaccharide,
0.2% preservative,
75.8% water.
Buchholz (US 9,414,597) discloses the pesticidal mixture of spiropidion and abamectin, wherein the mixture ratio can range from 1000:1 to 1:100 (spiropidion : second pesticide) and exhibit synergy (claims 1, 8, 10, 11-17). Additional synergistic mixture weight ratio range of 33:1 to 1:5 (spiropidion : second pesticide) is disclosed (column 18, lines 5-11). Mixture of spiropidion (compound T1.055)2 and abamectin is shown in Table 71 for synergistic control of spider mites (columns 43-44).
Broadened spectrum of action, synergistic effect, reduced rate of application, and increased safety in use are disclosed with the combination of pesticides (column 17, lines 15-218). Control of Lepidoptera, Thysanoptera, acarine, and insect pests (paragraph bridging columns 19-20), including whiteflies, aphids, and mites is disclosed (paragraph bridging columns 16-17). Protection of useful crops such as strawberries, cucumbers, cotton, tomatoes, and cucurbits is disclosed (column 20, lines 8-27). Formulation as a suspension concentrate is disclosed (column 32, lines 24, 42-43), with formulation inerts such as diluents, solvents, fillers, surfactants, biocides, anti-freeze, thickeners, wetting and dispersing agents, other adjuvants, including condensation product of formaldehyde with naphthalene sulfonate, alkyl esters of oils of vegetable or animal origin (column 32, lines 35-67). 0.01 to 90% or 5-70% active agent, up to 20% surfactant, and 10-99.9% formulation inerts is disclosed (column 34, lines 16-29).
Heming (US 2012/0070482) discloses formulations of avermectins, including abamectin (paragraphs 17, 23, 25), in the form of a suspension concentrate (paragraph 50). Another pesticide can be included for wider spectrum of activity (paragraphs 56, 65). An aqueous suspension concentrate example shows the use of “Atlox 4913,” “Morwet D425,” and propylene glycol, and “Rhodopol 23” (page 6, Example 2). Atlox 4913 is described as an acrylic graft copolymer dispersant, and Morwet D425 is described as sodium salt of sulfonated naphthalene formaldehyde condensate (paragraph 67).
Muehlebach 2020 discloses spiropidion as a proinsecticide, in that its enol ethyl carbonate group is cleaved in vivo to release the potent active principle, the dione form (section 3.3). The dione form can undergo keto-enol tautomerism (Figure 9 and the last paragraph of section 3.3). Spiropidion is disclosed as having low contact activity but it controls piercing sucking pests mainly through oral uptake, wherein the active form is hydrolyzed in vivo (section 3.3). Spiropidion “offers excellent properties for systemic translaton in plants,” which is “extremely favorable for the control of sucking pests such as aphids and whiteflies, which are typically less exposed to direct spray contact due to their way of life on leaf undersides” (section 3.4).
Morwet D-425 powder safety data sheet is cited to establish that Morwet D-425 is the product name for the surfactant (page 1) alkylnaphthalenesulfonic acid polymer with formaldehyde, sodium salt (page 2).
Bohus (US 4,806,151) is cited to establish that Rhodopol 23 is a xanthan gum type polysaccharide thickening agent that can be used in suspension concentrates (column 4, lines 60-64).
8-10% spiropidion + 1-2% abamectin
Buchholz teaches the exact combination of spiropidion and abamectin in the weight ratio range that includes 33:1 to 1:5 (spiropidion to second pesticide such as abamectin) and active ingredient concentration of 0.01 to 90% or 5-70%. Muehlebach ‘031 discloses an example of 10% active ingredient, which encompasses spiropidion. Muehlebach 2020 provides the motivation for the ordinary skilled artisan to select the appropriate G in Muehlebach ‘031 to obtain spiropidion for the benefit of its excellent in vivo pesticidal properties. Muehlebach ‘031 also discloses combination with another active ingredient, including abamectin. Thus, the claimed concentrations and relative amounts would have been obvious to the ordinary skilled artisan.
1-5% dispersing agent comprising an acrylic graft copolymer solution in water and propylene glycol
Muehlebach ‘031 discloses an example wherein 8% of a solution of an acrylic
graft copolymer in water and propylene glycol is used in a suspension concentrate formulation (paragraph 442) and further discloses 2-30% surfactants in aqueous suspension concentrates. The ordinary skilled artisan would have found it obvious to adjust the amount of the dispersing agent, depending on the amount and nature of the other composition ingredients, within the range taught by Muehlebach ‘031 to obtain adequate dispersion of ingredients.
Claim 3
As discussed previously in this Office action, the chemical nomenclature set forth in claim 3 is indefinite. To the extent that the claim is trying to set forth chemical nomenclature for the commercial product ATLOXTM 4913, the instant specification discloses nomenclature and synonyms for the product, including a 2-methyl-2-propenoic acid and methyl 2-methyl-2-propenoate with α-methyl-Ω-hydroxypoly(oxy-1,2-ethandiyl) graft, and methyl methacrylate/methacrylic acid/monomethoxypolyethylene glycol (PEG) methacrylate graft copolymer (page 2, lines 20-24).
Muehlebach ‘031 discloses a solution of an acrylic graft copolymer in water and
propylene glycol. Heming teaches ATLOXTM 4913 as an acrylic graft copolymer dispersant, which contains the chemistry that claim 3 may have attempted to recite. Therefore, to the extent that claim 3 is intended to recite the chemical nomenclature for ATLOXTM 4913, use of such a dispersant to formulate spiropidion and abamectin as claimed would have been obvious.
Although Muehlebach ‘031 discloses the pesticidal combination of spiropidion and abamectin and Buchholz exemplifies the exact pesticidal combination of spiropidion and abamectin, Muehlebach ‘031
0.2-1% sodium alkyl naphthalene sulfonate formaldehyde condensate
Muehlebach ‘031 discloses in Example F8b an aqueous suspension concentrate that contains 2% naphthalenesulfonic acid, sodium salt, condensed with formaldehyde. Broadly, Muehlebach ‘031 discloses that aqueous suspension concentrate can contain 5-75% or 10-40% active ingredient, 1-40% or 2-30% surfactant, and 24-94% or 30-88% water (paragraphs 255-258). Buchholz discloses the use of condensation product of formaldehyde with naphthalene sulfonate in formulating spiropidion and abamectin. Heming exemplifies 1.25 parts by weight of Morwet D425 for formulating abamectin and other pesticides, wherein Morwet D-425 powder safety data sheet establishes that Heming’s Morwet D425 is the same chemical as the claim-recited “sodium alkyl naphthalene sulfonate formaldehyde condensate” in instant claim 4.
Thus, it would have been obvious to the ordinary skilled artisan to utilize both ATLOXTM 4913 and Morwet D425 to formulate spiropidion and abamectin. As for the claimed 0.2-1% range of sodium alkyl naphthalene sulfonate formaldehyde condensate, the ordinary skilled artisan would have found it obvious to adjust the amount of the Morwet D425 surface active agent, depending on the amount and nature of the other composition ingredients, within the range taught by Muehlebach ‘031 to obtain adequate dispersion of ingredients.
5-10% propylene glycol
Muehlebach ‘031 teaches the use of propylene glycol to formulate spiropidion and similar compounds, in combination with additional pesticides such as abamectin. As for specific amount range of 5-10%, it would have been obvious to the ordinary skilled artisan to adjust the amount of the solvent depending on the amount and nature of the formulation ingredients to obtain a useful pesticidal formulation.
0.1-2% thickening agent such as a natural gum or montmorillonite clay
Heming teaches Rhodopol 23 for formulating abamectin and other pesticides, and Bohus establishes that Rhodopol 23 is a xanthan gum thickening agent. The claimed amount range would have been obvious to the ordinary skilled artisan in view of the prior art teachings taken as a whole regarding formulation additives and the level of thickness required of storage or end use.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, because every element of the invention and the claimed invention as a whole have been fairly disclosed or suggested by the teachings of the cited references.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to JOHN PAK whose telephone number is (571)272-0620. The Examiner can normally be reached on Monday to Friday from 8:30 AM to 5 PM.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's SPE, Fereydoun Sajjadi, can be reached on (571)272-3311. The fax phone number for the organization where this application or proceeding is assigned is (571)273-8300.
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/JOHN PAK/Primary Examiner, Art Unit 1699
1 See attached PTO-892, Non-patent literature “U.”
2 See Table 1, columns 6-7.
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