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 .
Priority
This Application is a 371 National Stage Entry of PCT/EP2022/085701 filed on December 13, 2022. Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. EP2121571.3, filed on December 17, 2021.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on June 17, 2024 is acknowledged and has been considered.
Status of the Claims
Acknowledgement is made of claims in the filed Application 18/720,994; original claims 1-3, 10, 14 and 15; amended claims 4-9 and 11-13. No new matter was introduced.
Thus, claims 1-15 represent all the claims currently under consideration.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 15 is rejected under 35 U.S.C. 101 because, the claimed invention is directed to non-statutory subject matter. The claim does not fall within at least one of the four categories of patent eligible subject matter, process, machine, manufacture of composition because it recites, "Use of an organic acid", "as a chemical stabilisation agent" – a use claim is not considered a method for lack of distinct steps. Rather, the claim as presented can be drawn to two distinct categories of invention: composition matter and method. Further “use” claims that do not clearly purport to claim a process, machine, manufacture or composition of matter fail to comply with 35 U.S.C. 101. In re Moreton, 288 F.2d 708, 129 USPQ 227, 228 (CCPA 1961), (“one cannot claim a new use per se, because it is not among the categories of patentable invention specified in 35 U.S.C § 101”). See MPEP 2173.05(q).
Claim Rejections - 35 USC § 112(b)
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 4, 5, 9, 11, 14 and 15 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 9 contains the trademark/trade names, A. 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 fungicidal active ingredient and, accordingly, the identification/description is indefinite.
Claims 4, 5, 9, 11, 14, and 15 are rejected 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 4, 5 10 and 14; the phrases “preferably” as used in claims 4, 5 and 10 and the phrase “in particular” as used in claim 14, render the claims indefinite because the claims include elements not actually disclosed (those encompassed by “preferably” or “in particular”) thereby rendering the scope of the claims unascertainable. Description of preferences is properly set forth in specification rather than the claims. If stated in the claims, preferences may lead to confusion over the intended scope of a claim. See MPEP § 2173.05 (d).
Regarding claim 9 and 11, parentheticals are used in these claims which may confuse the scope of the limitations. In addition, there is no clear antecedent basis for the subject matter in the parentheticals. It is unclear if the subject matter in the parentheticals broadens or narrows the claimed invention. Applicant is requested to remove the parentheticals and amend the claim so as to particularly point and distinctly claim what he considers as the invention, without using parentheticals.
Regarding claim 15; the phrase, “Use of an organic acid” (emphasis added), is ambiguous, describing a compound and possibly method of use. Applicant is requested to clearly distinguish a category of invention under 35 U.S.C. 101 for each claim.
For the purpose of applying prior art and progressing compact prosecution, Examiner interpreted the instant claim 15, as a composition that comprises the use of an organic acid.
Claim Rejections - 35 USC § 112(d)
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 12 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. The claim recites; An aqueous composition comprising the composition according to claim 1, optionally further comprising one or more adjuvants or carriers (emphasis added). As stated, the claim does not narrow the scope any further since what is recited is optional. Thus, it fails to further limit the subject matter of the independent claim 1.
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
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 Gallup et al., WO 2018/204434 A1, (Published on November 8, 2018 with Priority date, May 2, 2017, cited in the IDS), heron after Gallup, in view of Oppong et al., WO 95/08267, (“Synergistic Antimicrobial compositions containing 2-(thiocyanomethylthio) Benzothiazole and an organic acid”, PCT/US94/09465, Published on March 30, 1995) hereon after, Oppong.
Regarding claims 1,2, 3, 4, 5, 6, 9, 10, 11, 12, 13 and 14; Gallup discloses compound (I), florylpicoxamid, for use as fungicide for the control of phytopathogenic fungi in crops, as in the instant claim 1 (abstract).
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Gallup teaches the delivery of florylpicoxamid may be in liquid formulations usually known as emulsifiable concentrates (claim 2), aqueous suspensions or suspension concentrates ([0011]). Concerning the alkoxylated emulsifiers as recited in claim 3, Gallup teaches emulsifiable concentrates include various nonionic emulsifiers, examples include, polyalkylene glycol ethers and condensation products of alkyl and aryl phenols, aliphatic alcohols, aliphatic amines or fatty acids with ethylene oxide, propylene oxides such as ethoxylated alkyl phenols and carboxylic esters solubilized with polyol or polyoxyalkylene; and anionic emulsifiers which include oil-soluble salts (e.g., calcium) of alkylaryl sulphonic acids, oil-soluble salts or sulfated polyglycol ether and appropriate salts of phosphated polyglycol ether ([0014]).
Regarding instant claim 4 on the percent by weight of the florylpicoxamid, Gallup teaches formulations of florylpicoxamid compositions that contain varying percentages of florylpicoxamid by weight based on total weight of the different formulations, such as 10 to 90, or 25 to 75 weight percent of florylpicoxamid for wettable powders, 10 to 50 weight percent for emulsifiable concentrates, 5 to 50 weight percent for aqueous suspensions and 0.5 to 10 weight percent for granular formulations ([0012]-[0016]). Gallup informs artisans the florylpicoxamid has a broad range of efficacy and the exact amount of active material applied is not only dependent on the specific material being applied but also on the particular action desired ([0039]-(0040]).
Regarding percent weight of organic acid, Gallup reveals that mixtures of two or more organic liquids may be employed in the preparation of the emulsifiable concentrate and that surface-active dispersing agents are typically employed in liquid formulations and in an amount of, from 0.1 to 20 percent by weight based on the combined weight of the dispersing agent with florylpicoxamid ([0015]).
Concerning instant claim 6, Gallup discloses representative of organic liquids that may be employed in preparing the emulsifiable concentrates of florylpicoxamid that include aromatic liquids, mineral oils, substituted aromatic organic liquids, dialkyl amides of various fatty acids particularly the dimethyl amides of fatty glycols and glycol derivatives, among others ([0015)].
Regarding instant claims 9 and 10, Gallup teaches formulations of florylpicoxamid may include combinations of other pesticidal compounds, fungicides, bactericides, herbicides, nematicides, miticides, arthropodicides, insecticides, or combinations thereof, compounds that are compatible and not antagonistic to the activity of florylpicoxamid. Gallup thus teaches a composition that comprises a combination of florylpicoxamid and the pesticidal compound can generally be in a weight ratio of from 1:100 to 100:1 ([0021]).
Regarding the additional fungicidal ingredients as recited in claims 9 and 10, Gallup lists pesticidal compounds that can be combined with florylpicoxamid to form fungicidal mixtures and synergist mixtures to control a wider variety of undesirable diseases. Gallup reveals a long list of compounds that can be combined with florylpicoxamid that incorporates those recited in the instant application (claim 9), including benzovindiflupyr and pydiflumetofen (claim 10), ([0022]-[0026], pages 6-17).
Concerning additional ingredients as in the instant claim 11 and 12, Gallup teaches florylpicoxamid may be dissolved in an inert carrier which is either a water-miscible solvent or a mixture of water-immiscible organic solvents and emulsifiers [0013]. Gallup gives examples of cationic, anionic and non-ionic emulsifiers ([0014]); reveals that surface-active dispersing agents are employed in liquid formulations and that the formulations can also contain compatible additives, other biologically active compounds and suitable adjuvant surfactants or carriers ([0014-0015], and Examples, [0042, 0044, 0046]).
Regarding claim 13, a method of controlling or preventing infestation of crops, Gallup’s disclosure reveals a method for the control or prevention of fungal attack that comprises applying to the soil, plants, roots, foliage, seed or locus of the fungus, or to a locus in which the infestation, for example, applying to cereal an effective amount of florylpicoxamid. Gallup explains florylpicoxamid is suitable treatment of various plants at fungicidal levels while exhibiting low phytotoxicity and that it may be useful both in protectant and / or eradicant fashion ([0027]).
Additionally, regarding the limitation in claim 14, Gallup discloses, a compositions of florylpicoxamid is effective in controlling a variety of undesirable fungi that infect useful row crops; including wheat for example, powdery mildew of wheat (Blumeria graminis f. sp. tritici); septoria blotch (Septoria tritici, Mycosphaerell graminicola); he cites prevention or control of rust (Puccinia arachidis), stem rust (Puccinia graminis) and stripe rust (Puccinia striiformis) in other grain crops including but not limited to rye, sorghum, oat and triticale ( [0035]-[0037] and claims 4 and 6).
The instant claim differs from the prior art as follows: Gallup teaches on fungicidal compositions comprising of florylpicoxamid and explains combinations of florylpicoxamid with other fungicidal mixtures and synergistic mixtures help control a wider variety of undesirable diseases. However, Gallup does not teach on fungicidal compositions comprising of organic acids.
Regarding fungicidal compositions comprising of organic acids as in the instant claims 1, 5, 7, 8 and 15; Oppong et al. 1995, teaches on compositions comprising 2-(thiocyanomethylthio)benzothiazole and at least one organic acid or its salt, useful for controlling the growth of one or more microorganisms and for preventing spoilage caused by bacteria and fungi in various products, materials or media. Oppong discloses these materials or media include pharmaceutical compositions, cosmetics and toiletry formulations and agrochemical compositions among others. Oppong teaches that products, materials or media as listed in his teachings when wet or subjected to treatment with water are susceptible to bacterial and / or fungal deterioration or degradation unless steps are taken to inhibit such degradation (pg. 1). Importantly, Oppong reveals compositions comprising of organic acids are useful in agrochemical formulations for the purposes of protecting seeds or crops against microbial spoilage (pg. 3).
Oppong’s teachings inform artisans of the following; 2-(thiocyanomethylthio)benzothiazole, a known biocide, can be used alone in low concentrations, and similarly organic acids can also be used alone to control microorganisms even though they have lower efficacy (page 1). Thus, Oppong’s disclosure uses compositions of organic acids in combination with 2-(thiocyanomethylthio)benzothiazole;
Regarding claims 1, 7, 8 and 15, Oppong teaches specific examples of effective organic acids that include aliphatic organic acids including, oxalic acid, glycolic acid, citric acid, and malic acid, among others and states that further mixtures of organic acids can also be used (page 4).
Regarding claims 5, Oppong discloses varying weight ratios of 2-(thiocyanomethylthio)benzothiazole (TCMTB), to the organic acids depending on the organic acid used; ranging from TCMTB: oxalic acid, 2:1 to 1:166; TCMTB: glycolic acid, 1:2.5 to 1:666; TCMTB: citric acid, 1:5 to 1:166 and TCMTB: malic acid, 1:2.5 to 1:666 (Table - page 5).
Further, Oppong teaches that depending on the specific application, the preservative may be prepared in an emulsion form by emulsifying it in water or if necessary by adding a surfactant. Oppong informs artisans that additional chemicals such as insecticides may be added to the compositions (pg. 6).
Per MPEP § 2143(A)(I), a prima face case of obviousness exists for combining prior art elements according to known methods to yield predictable results.
Gallup teaches fungicidal compositions comprising of florylpicoxamid (claim 1), emulsifiable concentrates (claim 2) which comprise an alkoxylated emulsifier (claim 3), compositions where florylpicoxamid is present in ranges including 0.5 to 10 percent by weight and higher based on the weight of composition (claim 4); compositions with organic liquids that may be employed in preparing the emulsifiable concentrates of florylpicoxamid that include aromatic liquids, substituted aromatic organic liquids, dialkyl amides of various fatty acids particularly the dimethyl amides of fatty glycols (claim 6); he discloses compositions with one or more additional fungicidal ingredient as claimed in the instant application (claim 9), including benzovindiflupyr and pydiflumetofen at a weight ratio of 100:1 to 1:100 (claim 10); compositions of florylpicoxamid that are dissolved in inert carriers which may be either water-miscible solvents or mixture of water-immiscible organic solvents and emulsifiers, with examples of anionic and non-ionic emulsifiers (claim 11); compositions with suitable adjuvant surfactants or carriers (claim 12) and finally that compositions of florylpicoxamid are effective in controlling a variety of undesirable fungi that infect useful row crops; including wheat (claim 13) and phytopathogenic microorganisms that include Mycosphaerell sp and Puccinia sp. (claim 14).
Oppong teaches organic acids that include aliphatic hydroxy mono-carboxylic acids and di- and tri-carboxylic acids are useful in agrochemical formulations (claim 1 and claim 15). Regarding claims the instant claims 7 and 8, Oppong teaches organic acids that are useful in agrochemical formulations include oxalic acid, glycolic acid, citric acid and malic acid, and reveals varying percent weight ratios depending on what the organic acids are used in (claim 5). Oppong informs artisans compositions comprising of organic acids can be useful in agrochemical formulations for the purposes of protecting seeds or crops against microbial spoilage.
Applicant claims a fungicidal composition comprising florylpicoxamid as a fungicidal active ingredient and an organic acid selected from an aliphatic C2 to C8 or di-or tri-carboxylic acid or citric acid and further recites the organic is used as a chemical stabilization agent for florylpicoxamid in fungicidal composition (claim 15).
Accordingly, it would have been prima facie obvious before the effective filing date of the instant application to take the teachings of Gallup, use a fungicidal composition of florylpicoxamid, with additional fungicidal active ingredients and combine with the teachings of Oppong, use an organic acid as a stabilization agent for florylpicoxamid in a fungicidal composition, to arrive at the instantly claimed invention; of a fungicidal composition comprising of florylpicoxamid as a fungicidal active ingredient and an organic acid as claimed in the instant claims, as a stabilization chemical agent for florylpicoxamid as claimed in the instant application (claim 15), with additional fungicidal ingredients selected from benzovindiflupyr or pydiflumetofen (claim 9-10) and with additional additives, carriers and adjuvants (claim 11-12), as a method of controlling or preventing infestation of crops by phytopathogenic microorganism, applying the composition to plants as further recited in the instant claims, with reasonable expectation of success.
One would be motivated to do because; (i) as disclosed in prior art, combined compositions of florylpicoxamid are already known to control or prevent infestation of crops by phytopathogenic microorganisms, in wide variety of crops, applied to different part of plants and microorganisms without damaging the commercial value of plants; (ii) compositions of organic acids are known to prevent degradation or deterioration in agrochemical formulations (iii) thus one would be motivated to combine composition to florylpicoxamid, with organic acid and additional fungicidal active ingredients to achieve fungicidal composition that controls or prevent infestation of crops of useful plants by phytopathogenic microorganisms in particular wheat and use the organic acid in the composition as chemical stabilization agent for florylpicoxamid in the fungicidal composition.
Claims 1 - 15 are rejected under 35 U.S.C. 103 as being unpatentable over Blum et al., WO 2019/101580 A1, (Blum et al., “Fungicidal Compositions” Published on May 31, 2019 with Priority date, November 21, 2017), heron after Blum, in view of Fukushima and Yamada, WO 2021/172390 A1, (Published on February 25, 2021, with Priority date, February 27, 2020, cited in the IDS – Google translation used), hereon after, Fukushima.
Regarding claims 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13 and 14; Blum teaches fungicidal compositions of florylpicoxamid,(claim 1), compound formula (IA) or agrochemically acceptable salt, N-oxide or tautomer thereof (page 3 line 15). Blum’s teachings reveal formulations that include emulsion concentrates as in instant claim 2, containing surfactants such as wetting and dispersing agents and other compounds that provide adjuvacy effects e.g. with ethoxylated alkylphenol as in claim 3, condensation products of formaldehyde with naphthalene sulphonate, a fatty alkyl sulphate and ethoxylated fatty alcohol as in claim 6 (pg. 22, lines 10-25).
Regarding weight ratios as in instant claims 4 and 10; Blum’s reference lists a wide range of weight ratios ranging from 1000:1 to 1:1000 and goes on to reveal that certain weight ratios were able to give rise to synergist activity. Of the disclosed weight ratios, the particularly preferred were 1:100, 1:50, 1:25, 1:10, 1:5 and 2:5 (pg. 6 lines 5-10).
Further concerning instant claims 4 and 5, Blum teaches formulations include 0.01 to 90% by weight of active agent, from 0 to 20% agriculturally acceptable surfactant and 0 to 99.99% solid or liquid formulation inerts and adjuvants, the active agent consisting of at least florylpicoxamid together two additional compounds from the recited list in his disclosure and optionally other active agents, particularly microbiocides or conservatives or the like (pg. 22 line 35-end). Blum discloses application form formulations may for example contain 0.01 to 20% by weight preferably 0.01 to 5% by weight of active agent (pg. 23 line 1-5).
Regarding claims 9 and 10; Blum further teaches compositions with additional fungicidal active ingredients that includes compounds that overlap with those recited in the instant claim 9; further he discloses the preferred compound is selected from among others, benzovindiflupr and pydiflumetofen in a weight ratio of florylpicoxamid to another compound with active ingredient from 5:1 to 1:5. as in instant claim 10 (pages 2-5).
Regarding claim 11, Blum informs artisans the compositions of florylpicoxamid in combination with other fungicidal or synergistic mixtures in his disclosure may be produced by mixing active ingredients with appropriate formulation inerts, diluents, solvents, fillers and optionally other formulating ingredients such as surfactants, biocides, anti-freeze, stickers, thickeners and other that provide adjuvacy effects (pg. 22, line 20-25).
Regarding claim 13, Blum teaches the compositions in his disclosure are applied to a method of controlling disease on useful plants, the locus thereof caused by phytopathogenic microorganisms (pg. 13, lines 1-10)
Regarding claim 14, Blum discloses the fungicidal compositions can be used to control disease caused by certain phytopathogens on certain useful plants comprising of cereals such as wheat (pg. 14, lines 9-10) and phytopathogens that include – Septoria tritici, Puccinia recondite, Puccinia Striiformis, Erysiphe graminis on wheat and Mycosphaerella sp. in peanut and banana (pg. 6, line 15-20).
The instant claim differs from the instant claims as follows: While Blum teaches on fungicidal compositions comprising of florylpicoxamid and combinations of florylpicoxamid with other fungicidal mixtures and synergistic mixtures, he does not specifically teach on fungicidal compositions comprising of organic acids as in the instant invention claims 1, 5, 7, 8 and 15.
Regarding instant claims 1, 5, 7, 8 and 15; Fukushima’s disclosure on “disinfectant composition”, teaches on fungicidal compositions comprising a dicarboxylic acid and a fungicidal substance other than dicarboxylic acids - as in instant claims 1 and 15;
Regarding the instant claim 5, on the percent weight of the composition for the organic acid, Fukushima discloses, wherein the ratio of the mass of the dicarboxylic acid to the mass of the fungicidal substance other than the dicarboxylic acid is 1-4000 or less (abstract and [009]). Further, Fukushima teaches, the mass of the dicarboxylic acid to be preferably 10 or more and 3000 or less, more preferably 50 or more and 2000 or less and still more preferably 100 or more and 1000 or less based on the mass of the substance having a bactericidal action other than the dicarboxylic acid ([0013]).
Regarding claims 7 and 8; While Fukushima’s disclosure is directed towards fumaric acid, his teachings reveal that organic acids are disclosed in prior work for use as a sterilization composition for rice seedlings comprising of one or more kinds of acids such as proline, acetic acid, oxalic acid, malonic acid, maleic acid, fumaric acid, malic acid and citric acid, among others ([003]).
Additionally, Fukushima teaches compositions comprising of dicarboxylic acid combined with a bactericidal compound used for applying in gramineous plants and the disinfectant composition prevents or reduces diseases of gramineous plants ([009]). One of ordinary skill in the art understands that gramineous plants include cereals. The instant application recites a fungicidal composition comprising of florylpicoxamid and organic acid for use in controlling or preventing infestation of crops and recites cereals, in particular, wheat – claims 1, 13, 14 and 15.
Fukushima further teaches the dicarboxylic acid in his disclosure is not limited to those he has disclosed, as long as it is an organic compound having two carboxyl groups. Fukushima reveals dicarboxylic acid used in his teachings constitute a portion of carbons other than the carboxyl group that may be 6 or less; examples shown in his teachings include oxalic acid, malonic acid, adipic acid, suberic acid, glutaric acid, succinic acid, fumaric acid, among others ([0012] – [0013]).
Importantly, as in the instant application claims 1, 9, 10 and 15; Fukushima lists examples of substances having a bactericidal action other than dicarboxylic acid that can be used in compositions with organic acids; compounds taught by Fukushima that are used in combination with the organic acids include florylpicoxamid,([0030]), benzovindiflouropyr and pydiflumetofen ([0020]).
Furthermore, regarding instant claims 10, 11, and 12; Fukushima teaches a disinfectant composition may further contain an additive; examples of additives include a carrier, a surfactant or a dispersant, an auxiliary agent, an antioxidant, a colorant, an ultraviolet absorber, an antistatic agent and a preservative; he reveals, among these it is preferable to contain a surfactant or a dispersant ([0035]); further, the auxiliary agent may include a thickener ([0042]). He goes on to explain the surfactant or dispersant is not particularly limited as long as it can be used for ordinary agricultural or horticultural preparations; examples include nonionic, anionic, cationic and amphoteric surfactants. He further lists examples of fatty acid esters and polyethoxylated fatty acids, alcohols, aromatic, alkyl (C8-C12) and dialkyl (C8-C12) among others ([0037]) and anionic surfactants of different C lengths C3 – C18 ([0038]); surfactant such as polyethylene, a high fatty ester, among others ([0047]). He informs artisans in addition to the above components the disinfectant composition may contain other components such as fungicides.
Fukushima also teaches the disinfectant composition can be in any form of an ordinary agricultural and horticultural agent for example, a powder, wettable powder, an emulsion, water soluble agent, an emulsion in oil, an oil soluble agent, tablet, granular, among others ([0045]). Finally, he discloses the disinfectant composition may be used to prevent invention to a plant body, at least one of a root, a stem, a leaf, a seed or a flower ([0054]).
Per MPEP § 2144.06, it is prima facie obvious to combine two compositions each of which is taught by prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose. The instant application claims a fungicidal composition comprising of florylpicoxamid as a fungicidal active ingredient and an organic acid selected from the recited limitations, wherein the composition is an emulsifiable concentrate comprising an alkoxylated emulsifier (claims 1-3), and the composition with percent weights as recited and with the additional limitations (claims 4-14), for controlling or preventing infestation of plants by phytopathogenic microorganisms. The instant invention further claims a composition that uses an organic acid selected from the recited limitations, as a chemical stabilisation agent for florylpicoxamid in a fungicidal composition (claim 15).
Blum discloses fungicidal compositions of mixtures of components that comprise of florylpicoxamid and with one or two other additional fungicidal active ingredients for controlling or preventing infestation of plants by phytopathogenic microorganisms; prepared in formulations that include emulsifiable concentrate, and comprising appropriate solvents, and additional fungicidal active ingredient that includes benzovindiflupyr or pydiflumetofen, compositions with appropriate surfactants, anti-freeze, thickeners and compounds with other adjuvancy effects. Fukushima discloses bactericide compositions containing dicarboxylic acids with examples that include oxalic acid, citric acid, malonic acid, adipic acid and maleic acid and a substance other than the dicarboxylic acid, which includes florylpicoxamid, benzovindiflupyr and pydiflumetofen as examples of compounds that can be formulated with dicarboxylic acid for the purpose of preventing or controlling disease in plants.
Accordingly, it would have been prima facie obvious to one skilled in the art to combine the teachings of Blum, and the teachings of Fukushima to arrive at the instant claimed invention before the effective filing date with reasonable expectation of success. One would have been motivated to do so because of any of the following reasons; (i) florylpicoxamid has been shown to have a broader-spectrum of activity when combined with two other active fungicidal active ingredients as in Blum’s teachings (ii) per Fukushima, organic acids compositions in combination with florylpicoxamid and other fungicidal active ingredient are known to have enhanced activity and (iii) Blum reveals that compositions comprising of mixtures of different fungicidal compounds possessing different modes of action can provide compositions with a broader spectrum of activity, improved crop tolerance, synergistic interactions or potentiating properties or compositions which display a more rapid onset of activation or which have longer lasting residual activity and / or a reduction in the application rate of the compounds required for effective control of the phytopathogen.
Conclusion
No claim is found to be allowable.
Claims 1-15 are rejected.
Communication
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/P.O./Examiner, Art Unit 1627 /JULIET C SWITZER/Primary Examiner, Art Unit 1682
Prosecution Insights