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
The instant application was filed 28 June 2024 and is the national stage entry of PCT/IB2022/062934 filed 30 December 2022. The Applicant claims priority to foreign document IN202111062238 filed 31 December 2021. An English copy of the document has been provided. Therefore, the effective filing date of the instant application is 31 December 2021.
Election/Restrictions
Claims 34, 35, 41, and 43 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 01 July 2026.
Applicant's election with traverse of Group I in the reply filed on 01 July 2026 is acknowledged. The traversal is on the ground(s) that the art does not teach the newly added limitation of “compatibility agent prevents and/or lowers the rate and/or extent of reduction of the amount of the free azole fungicide in the composition.” The Applicant further argues that a skilled artisan would not have been led to combine the teachings.
This is not found persuasive because the new limitation of “compatibility agent prevents and/or lowers the rate and/or extent of reduction of the amount of the free azole fungicide in the composition” is interpreted as an inherent property of the compatibility agent itself. “[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus, the claiming of a new use, new function or unquantified property which is necessarily present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). Therefore, the claim is interpreted as its final product of a copper-based fungicide, azole fungicide, and a compatibility agent.
Furthermore, the teachings of Butts have been removed as prior art and the arguments against them will not be addressed.
The requirement is still deemed proper and is therefore made FINAL.
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.
Claim(s) 1-3, 6, 10, 15, 17, 19, 20, 22, 26, 27, 32, 44, 46, and 47 is/are rejected under 35 U.S.C. 103 as being unpatentable over Van Der Laan (WO 2018/211383 A1) and Kim et al. (Comparative and antifungal activities of sulfur nanoparticles capped with chitosan, Microbial Pathogenesis, 2020).
Regarding claim 1, Van Der Laan teaches a formulation comprising copper chloride (same as cuprous chloride; (1) copper-based fungicide), prothioconazole ((2) azole fungicide), and excipients, which are interpreted as (3) compatibility agents for better dissolution in liquid formulations or enhancing/stabilizing the formulation (Table on pg. 15). The limitation of “compatibility agent prevents and/or lowers the rate and/or extent of reduction of the amount of the free azole fungicide in the composition” is interpreted as an inherent property of the compatibility agent itself.
Regarding claim 3, the formulation may comprise water (Table on pg. 15).
Regarding claim 10, the formulation may comprise a) copper chloride (pg. 6, ln. 19) and water (pg. 8, ln. 27).
Regarding claim 15, the composition may comprise strobilurin (pg. 8, lns. 3-4).
Regarding claim 17, the composition may comprise azoxystrobin (pg. 7, ln. 7).
Regarding claim 19, the composition may comprise a) copper sulfate (Table on pg. 15).
Regarding claim 20, the composition may comprise b) prothioconazole (Table on pg. 15).
Regarding claim 22, the composition may comprise the a) metallic salt, such as copper chloride (pg. 6, ln. 19) in an amount of at least 0.01% (pg. 9, lns. 24-26).
Regarding claim 44, Van Der Laan teaches a formulation comprising copper chloride (same as cuprous chloride; (1) copper-based fungicide), prothioconazole ((2) azole fungicide), and excipients, which are interpreted as (3) compatibility agents for better dissolution in liquid formulations or enhancing/stabilizing the formulation (Table on pg. 15).
Regarding claims 46 and 47, the composition may comprise sodium methyl oleyl taurate (interpreted the same as methyl oleyl taurate) (pg. 11, ln. 12).
Van Der Laan does not teach an exact combination of certain components, such as additional fungicides, as recited in at least claim 15. Van Der Laan does not teach sodium thiosulfate in their composition in claims 2, 26, 27, and 32. Van Der Laan does not teach a concentration of compound (I) of 0.01-10% in claim 26 or 1-5% of sodium thiosulfate in claim 27.
Kim teaches that sodium thiosulfate is used against bacteria and fungi (abs) and has broad-spectrum antimicrobial activity and little human toxicity (pg. 1).
In regards to selecting the combination of all of the ingredients, such as additional fungicides, in at least claim 15, “[w]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” KSR v. Teleflex, 127 S.Ct. 1727, 1740 (2007) (quoting Sakraida v. A.G.Pro, 425 U.S. 273, 282 (1976)). “When the question is whether a patent claiming the combination of elements of prior art is obvious,” the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR at 1741. The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton.” Id. at 1742.
Consistent with this reasoning, it would have been obvious to have selected various combinations of various disclosed ingredients from within a prior art disclosure, to arrive at compositions “yielding no more than one would expect from such an arrangement.”
Van Der Laan teaches compositions comprising copper-based fungicides, azole fungicides, and compatibility agents, whereas the claimed invention is directed towards formulations comprising copper-based fungicides, azole fungicides, and compatibility agents. Since Van Der Laan teaches the individual components of the claimed composition, it is obvious for one of ordinary skill in the art to select the different combinations of ingredients to arrive at the claimed invention with a reasonable expectation of success.
Since Van Der Laan does not teach sodium thiosulfate in their composition in claims 2, 26, 27, and 32, one of ordinary skill in the art would have been motivated to use Kim’s teaching that sodium thiosfulate is used against bacteria and fungi with a reasonable expectation of success. A skilled artisan would have been led to combine the teachings to improve Van Der Laan’s composition with a broad-spectrum antimicrobial compound with little toxicity to humans. “Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (see MPEP § 2144.07).”
Futhermore, the limitation of “compatibility agent prevents and/or lowers the rate and/or extent of reduction of the amount of the free azole fungicide in the composition” is interpreted as an inherent property of the compatibility agent itself. “[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus, the claiming of a new use, new function or unquantified property which is necessarily present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). Therefore, the claim is interpreted as its final product of a copper-based fungicide, azole fungicide, and a compatibility agent.
Regarding the amounts in claims 26 and 27, Van Der Laan teaches excipients (pg. 11, lns. 3-7) along with amounts of these excipients that range from 1-2.5% (Example 1). That being said and in lieu of objective evidence of unexpected results, the concentrations can be viewed as a variable that achieves the recognized result of successfully making the agricultural composition, which a skilled artisan would have been easily motivated to modify and adjust based on the broad teachings of Van Der Laan. The optimum or workable range of dosing can be accordingly characterized as routine optimization and experimentation (see MPEP 2144.05 (II)B). “[Discovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art.” In re Boesch, 617 F.2d 272, 276 (CCPA 1980). Applicants provide no evidence of any secondary consideration, such as unexpected results, that would render the optimized amounts of components as nonobvious.
Claim(s) 29 is/are rejected under 35 U.S.C. 103 as being unpatentable over Van Der Laan (WO 2018/211383 A1) in view of Kim et al. (Comparative and antifungal activities of sulfur nanoparticles capped with chitosan, Microbial Pathogenesis, 2020), as applied to claims 1-3, 10, 15, 17, 19, 20, 22, 26, 27, 32, 44, 46, and 47 above, and further in view of Pandey et al. (Thiourea, a ROS Scavenger, Regulates Source-to-Sink Relationship to Enhance Crop Yield and Oil Content in Brassica juncea (L.), PLOS ONE, 2013).
In regards to claim(s) 1-3, 10, 15, 17, 19, 20, 22, 26, 27, 32, 44, 46, and 47, Van Der Laan and Kim, as applied supra, is herein applied in its entirety for its teachings of a formulation comprising an azole fungicide, copper-based fungicide, and compatibility agents.
Van Der Laan et al. do not teach thiourea in their composition in claim 29.
Pandey teaches that thiourea has been shown to favorably increase the yield of different crops (abs).
Since Van Der Laan et al. do not teach thiourea in their composition in claim 29, one of ordinary skill in the art would have been motivated to use Pandey’s teaching of using thiourea to increase crop yield with a reasonable expectation of success. A skilled artisan would have been led to combine the teachings to improve Van Der Laan’s composition and increase crop yield in their agricultural composition to prevent crop loss (pg. 1, lns. 7-10 of Van Der Laan). “Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (see MPEP § 2144.07).”
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Danielle Kim whose telephone number is (571)272-2035. The examiner can normally be reached M-F: 9-5 p.m. PST.
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/D.A.K./Examiner, Art Unit 1613
/ANDREW S ROSENTHAL/Primary Examiner, Art Unit 1613
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