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 .
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.
Claims 2, 16, and 40 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.
Regarding claims 2 and 40, the recitation “selected from a group comprising…spinosad, spinetoram or salt thereof” reads upon an improper Markush group as the group is “open-ended” (e.g., use of the term “comprising”). When materials recited in a claim are so related as to constitute a proper Markush group, they may be recited in the conventional manner, or alternatively. For example, if "wherein R is a material selected from the group consisting of A, B, C and D" is a proper limitation, then "wherein R is A, B, C or D" shall also be considered proper.
Regarding claim 16, the claim does not set forth an active methodological step.
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-2, 4, 10-11, and 15 is/are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Kong et al. AU 2021100104 A4 (Kong).
Kong teaches a microcapsule suspension, comprising the following components by weight percentage (100% in total): 0.5-30% of active ingredient of pesticide, 1-20% of capsule wall material, 1-5% of emulsifier, 1-5% of dispersant, 0.1-3% of wetting agent, 0.1-5% of pH adjusting agent, 0.05-0.3% of thickener, 0.1-0.2% of defoamer and water as balance; wherein, the active ingredient of pesticide is selected from one of chlorantraniliprole and/or emamectin benzoate or abamectin and the thickener is selected from xanthan gum, polyvinyl alcohol 1788, polyethylene glycol 4000, polyethylene glycol 6000, magnesium aluminum silicate, or magnesium lithium silicate. See Examples 1 and 3-6; Claim 1.
Kong teaches all of the instantly claimed elements. Thus, claims 1-2, 4, 10-11, and 15 are anticipated.
Claim(s) 16, 39-40, 42, 48-49, and 53 is/are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Kong et al. AU 2021100104 A4 (Kong) as applied to claims 1-2, 4, 10-11, and 15 above.
Kong determined virulence of test agent(s) on Chilo suppressalis. See Table 2. Kong teaches that the emamectin benzoate microcapsule suspension and the chlorantraniliprole microcapsule suspension had comparable indoor virulence on Chilo suppressalis as compared with single-ingredient control agents respectively. See page 17. Microcapsule suspensions including the two active ingredients had comparable indoor virulence on Chilo suppressalis as compared with 5% emamectin benzoate-chlorantraniliprole suspension, 9% emamectin benzoate-chlorantraniliprole suspension and 10% emamectin benzoate-chlorantraniliprole suspension. This showed that, microcapsule suspensions including a single active ingredient or a combination of emamectin benzoate and chlorantraniliprole can have effective insecticidal effect of active ingredients of pesticide on Chilo suppressalis.
Kong teaches all of the instantly claimed elements. Thus, claims 16, 39-40, 42, 48-49, and 53 are anticipated.
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 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) 5 and 7-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kong et al. AU 2021100104 A4 (Kong) as applied to claims 1-2, 4, 10-11, and 15 above, and further in view of Anderson et al. WO 2021/043642 A1 (Anderson).
Kong differs from the instantly claimed invention in that Kong 1) does not explicitly teach a composition, wherein the at least one polycationic type rheology modifier comprises monomers with ammonium, sulfonium or phosphonium moiety and 2) does not explicitly teach a composition, wherein the amount of the at least one polycationic type rheology modifier is of about 1% to of about 3% by weight, based on the total weight of the composition; however, these deficiencies would have been obvious in view of the teachings of Anderson.
In the instant case, the references may be combined to show obviousness because Kong and Anderson are each drawn to a composition comprising a pesticide(s). They are from the same field of endeavor, and/or are reasonably pertinent to an aqueous pesticidal suspension composition comprising a macrolide insecticidal compound or salt thereof; at least one polycationic rheology modifier; optionally additives and optionally additional active ingredient.
Anderson is drawn to an agricultural composition comprising at least one cationic polymer and an agriculturally active agent where the cationic polymer has at least one quaternary nitrogen atom (Abstract). The agricultural composition is used in agricultural spray operations and demonstrates effective reduction of driftable droplets. Anderson teaches, when pesticides are applied, it is aimed at a specific target, and expected to reach a specific target, such as a plant (page 1). When a pesticide travels to areas where it is not needed or wanted, (i.e. , when the pesticide “drifts”), unwanted consequences may result. Almost every pesticide, upon spray application, produces some amount of drift off of the target area. Drift is affected by factors such as the formulation of the pesticide, the amount of the pesticide sprayed, the application method, the weather, and the auxiliaries which are present in the spray solution. More specifically, drift is the movement of the pesticide through the air away from the intended target. The drift can be in the form of water or liquid droplets. Anderson teaches that it was surprisingly found that the composition, comprising at least one cationic polymer containing at least one quaternary nitrogen atom provided excellent spray drift control and shear stability (page 2).
Anderson explicitly teaches a composition for spray drift control comprising: (i) cationic polymer containing at least one quaternary nitrogen atom which is a reaction product of: (A) at least one ethylenically unsaturated, quaternizable or quaternized monomer selected from N-vinyl imidazole, diallylamines, aminoalkylmethacrylate, aminoalkylacrylate, N,N,N-trialkyl aminoalkyl acrylates, N,N,N-trialkyl aminoalkyl methacrylate, and mixtures thereof; and (B) optionally at least one ethylenically unsaturated, non-quaternizable monomer is selected from N-vinyl lactams, ethylenically unsaturated amides, and mixtures thereof; and (ii) at least one agriculturally active compound. See claim 1. In an embodiment, Anderson teaches that the at least one cationic polymer is in the range of from 0.003 vol. % to 1 vol. % (page 19).
In determining the differences between the prior art and the claims, the question under 35 U.S.C. 103 is not whether the differences themselves would have been obvious, but whether the claimed invention as a whole would have been obvious. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 218 USPQ 871 (Fed. Cir. 1983); Schenck v. Nortron Corp., 713 F.2d 782, 218 USPQ 698 (Fed. Cir. 1983).
It would have been obvious to combine an aqueous suspension composition of Kong with a cationic polymer containing at least one quaternary nitrogen atom of Anderson. One would have been motivated with a reasonable expectation of success in view of the teachings of Anderson. Anderson found that the composition comprising at least one cationic polymer containing at least one quaternary nitrogen atom provided excellent spray drift control and shear stability. Regarding the concentration of the rheology modifier, it would have been prima facie obvious to employ the cationic polymer in an amount disclosed by Anderson (e.g., from 0.003 vol. % to 1 vol. %) which overlaps the instantly claimed concentration range.
All of the instant limitations are taught by the combination of Kong and Anderson. A person of ordinary skill in the art would have had a reason to combine the teachings of Kong and Anderson. A person of ordinary skill in the art would have had a reasonable expectation of success in combining the teachings of Kong and Anderson. Thus, claims 5 and 7-8 would have been obvious based on the preponderance of the evidence.
Claim(s) 43, 45-46, and 55 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kong et al. AU 2021100104 A4 (Kong) and Anderson et al. WO 2021/043642 A1 (Anderson) in combination as applied to claims 5 and 7-8 above.
Regarding claims 43 and 45-46, Kong differs from the instantly claimed invention in that Kong 1) does not explicitly teach a composition, wherein the at least one polycationic type rheology modifier comprises monomers with ammonium, sulfonium or phosphonium moiety and 2) does not explicitly teach a composition, wherein the amount of the at least one polycationic type rheology modifier is of about 1% to of about 3% by weight, based on the total weight of the composition; however, these deficiencies would have been obvious in view of the teachings of Anderson for the reasons set forth supra.
Regarding claim 55, Kong and Anderson in combination differs from the instantly claimed invention in that said combination does not explicitly teach a method applying an instantly claimed amount; however, this deficiency could have been found via routine experimentation employing amount(s) disclosed by Kong as an initial starting point for further optimization.
All of the instant limitations are taught by the combination of Kong and Anderson. A person of ordinary skill in the art would have had a reason to combine the teachings of Kong and Anderson. A person of ordinary skill in the art would have had a reasonable expectation of success in combining the teachings of Kong and Anderson. Thus, claims 43, 45-46, and 55 would have been obvious based on the preponderance of the evidence.
Conclusion
Claims 1-2, 4-5, 7-8, 10-11, 15-16, 39-40, 42-43, 45-46, 48-49, 53, and 55 are pending. Claims 1-2, 4-5, 7-8, 10-11, 15-16, 39-40, 42-43, 45-46, 48-49, 53, and 55 are rejected. No claims are allowed.
Contacts
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PATRICK T LEWIS whose telephone number is (571)272-0655. The examiner can normally be reached Monday to Friday, 10 AM to 4 PM EST (Maxi Flex).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Renee Claytor can be reached at (571) 272-8394. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PATRICK T LEWIS/Primary Examiner, Art Unit 1691
/PL/
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