DETAILED ACTION
Notice of 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
The amendments filed 6/02/2026 have been entered.
Response to Arguments
Applicant’s arguments, filed 6/02/2026, have been fully considered.
The rejections of claims under 35 U.S.C. 112(a) and 102(a) are WITHDRAWN in view of Applicant’s amendments to the claims.
Applicant traverses the rejection of claims under 35 U.S.C. 103(a). As argued by Applicant, “none of the cited references teach or suggest the technical features of claim 1” (Applicant Arguments, Page 8). That is, “the combination of all the recited specific types and content ranges of the pesticide active ingredient, the extender, and the disintegrant is not disclosed in the cited art” (Applicant Arguments, Page 9).
Applicant is advised that the arguments of counsel cannot take the place of evidence in the record (see In re Shulze, 346 F.2d 600 (CCPA 1965); see also In re Lovin, 652 F.3d 1349 (Fed. Cir. 2011) where it is noted that “the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art”).
Applicant, however, further argues that the “unique combination [of ingredients and amounts] allows the claimed pesticide tablet to provide a fast-release tablet that disintegrates or disperses in water within 60 seconds... thereby exhibiting high commercial utility” (Applicant Arguments, Page 9).
It is well settled that a showing of unexpected results is generally sufficient to overcome a prima facie case of obviousness. In re Albrecht, 514 F.2d 1389 (CCPA 1975). In the instant case, Applicant formulated 34 pesticide tablets, of which Test Examples 1-27 and 33-34 dissolved within 60 seconds, whereas the tablets of Jackish teach “disperse completely in less than 10 minutes, most in less than 5 minutes using even cold water drawn from wells in the early spring” (Page 6, Lines 10-13), wherein Example 1 “took 2 min and 23 sec to dissolve in 25oC water” (Page 8, Line 27) and Example 2 “took 2 min and 50 s to dissolve in 25oC water” (Page 9, Line 14). The showing that the tablets of the instant invention disintegrate or disperse in water within 60 seconds is considered to be an unexpected result.
However, in each of Test Examples 1-27 and 33-34, the non-effervescent tablets comprise:
(a) the pesticide chlorantraniliprole,
(b) a first extender selected from ammonium chloride, sodium chloride, potassium chloride, ammonium sulfate, and potassium sulfate;
(c) optionally at least one second extender selected from urea, ammonium chloride, sodium chloride, potassium chloride, ammonium sulfate, and potassium formate;
(d) the surfactants naphthalene sulfonate and proponate sulfonate;
(e) the binder HPMC;
(f) the disintegrant PVPP; and
(g) the lubricant magnesium stearate.
And the effervescent tablets comprise:
(a) the pesticide chlorantraniliprole;
(b) a first extender comprising sodium carbonate, sodium bicarbonate, and tartaric acid;
(c) the second extender ammonium chloride;
(d) the surfactants naphthalene sulfonate and proponate sulfonate;
(e) the binder HPMC;
(f) the disintegrant PVPP; and
(g) the lubricant magnesium stearate.
Applicant is reminded that “the objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support”. In re Clemens, 622 F.2d 1029 (CCPA 1980). In the instant case, the claims (which embrace thousands of potential tablets comprising different pesticides, extenders, disintegrants and which do not require a surfactant, binder or lubricant) are not drafted commensurate in scope with the unexpected results to overcome the prima facie case of obviousness.
Lastly, Applicant argues that “the claimed pesticide tablet successfully resolves various problems associated with conventional pesticide use by: minimizing user exposure risk... ensuring ease of use and accurate dosage.... and resolving environmental issues” (Applicant Arguments, Page 9).
Applicant's assertion of commercial success and/or solution of a long-felt need must be supported by an appropriate affidavit or declaration.
For all the foregoing reasons, Applicant’s arguments are not found persuasive.
Claim Objections
Claim 19 is objected to for the minor informality:
Claim 19 recites the pesticide tablet of claim 1, “wherein the pesticide tablet further comprises... ammonium alum” which is understood to be a typo and which should read ammonium aluminum.
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.
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, 6-7, 11-15, 17 and 19 are rejected under 35 U.S.C. 103(a) as being unpatentable over – CN 102515936A (2012 – based on the attached Machine Translation; of record) in view of Chen (“One of the Pesticide Formulate Types: Effervescent Tablet (EB)”, dated 10/23/2017 – provided in Applicant’s IDS submitted 1/05/2026; of record) and Jackish (WO 1993/13658; of record).
As amended, claim 1 is drawn to a pesticide tablet comprising:
(a) a pesticide active ingredient (e.g., chlorantraniliprole (claim 11)) in an amount of 22-80 parts by weight;
(b) an extender with a water solubility of 10 to 250 g/100 ml (e.g., ammonium chloride) in an amount of 10-61 parts by weight;
(c) a disintegrant (e.g., polyvinylpolypyrrolidone (PVPP) (claim 13) in an amount of 5-20 parts by weight;
(d) (as recited by claim 6) a surfactant; and
(e) (as recited by claim 19) the foam extender sodium bicarbonate.
CN 102515936A teaches “an insecticide fertilizer granule for rice” (Paragraph 0002) wherein the insecticide is chlorantraniliprole in an amount of 0.05-10% by weight (Paragraph 0016) and “[t]he carrier fertilizer is a mixture of one or more of ammonium chloride, ammonium sulfate, potassium chloride, potassium sulfate, and monoammonium phosphate” (Paragraph 0017) in an amount of 30-60% by weight (Paragraph 0016). As further taught by CN 102515936A, by “combining chlorantraniliprole with fertilizer... a single application can both fertilize and kill pests... overcoming the practice of having to apply insecticide and fertilizer two or more times” (Paragraph 0013).
As such, CN 102515936A teaches a pesticide formulation comprising chlorantraniliprole and ammonium chloride.
However, CN 102515936A does not teach the formulation as a tablet comprising PVPP, surfactant and sodium bicarbonate as claimed, wherein each of the ingredients in said tablet are in the recited amounts.
Yet, as taught by Chen, “[e]ffervescent tablets are tablets which are designed to dissolve in water, and release carbon dioxide. Effervescent tablets became a special formulation used in the agriculture field start[ing] in the 1970s” (Paragraph 1). As further taught by Chen, “most of the effervescent tablets are used to control weeds in the rice field” (Paragraph 3) and “using effervescent tablets could save... time and labor” (Paragraph 4), noting that, “[i]mportantly, [an] effervescent tablet is a relatively stable formulation, the active ingredient is not easily influenced by the environment, thereby avoid[ing] the degradation of the active ingredient” (Paragraph 5).
And Jackish et al teach pesticidal effervescent tablets comprising “about 0.1% to 75% of a pesticide” and “about 25% to 99.9% of a delivery system” (Page 1, Lines 25-26) wherein the delivery system comprises “about 0.1% to 5%... polyvinylpolypyrrolidone” (Page 30, claim 1). Specifically, Jackish et al teach pesticidal effervescent tablets comprising (Page 8, Example 1 and Page 9, Example 2):
55.3% Pesticide active ingredient
1.22% Polyplasdone XL-100 (i.e., polyvinylpolypyrrolidone (PVPP));
6.75% Lomar PWA® and Monawet MB-100® (i.e., surfactants); and
25.4% sodium bicarbonate.
It would have been prima facie obvious, based further on Chen and Jackish et al, to formulate the pesticide fertilizer formulation for rice comprising chlorantraniliprole and ammonium chloride, as taught by CN 102515936A, as an effervescent tablet further comprising polyvinylpolypyrrolidone (PVPP), surfactant, and sodium bicarbonate as claimed. It would have been obvious to formulate an effervescent tablet in order to provide “a relatively stable formulation... thereby avoid[ing] the degradation of the active ingredient” which can be used “to control weeds in the rice field” while saving “time and labor”, as taught by Chen. And it would have been obvious to formulate the effervescent tablet based on Jackish which teach effervescent pesticide tablets comprising pesticide along with polyvinylpolypyrrolidone (PVPP), surfactant, and sodium bicarbonate.
Additionally, in doing so, it would have been obvious formulate said effervescent tablets comprising chlorantraniliprole in an amount of 22-80 parts by weight, ammonium chloride in an amount of 10-61 parts by weight, and polyvinylpolypyrrolidone (PVPP) in an amount of 5-20 parts by weight.
At the outset, as discussed above, Jackish et al teach pesticidal effervescent tablets comprising “about 0.1% to 75% of a pesticide” “(Page 1, Lines 25-26) – which, utilizing a ratio of 1:3 chlorantraniliprole: ammonium chloride as disclosed by CN 102515936A1, equates to 18.75% chlorantraniliprole and 56.25% ammonium chloride – and about 0.1% to 5%... polyvinylpolypyrrolidone” (Page 30, claim 1). And, as discussed by MPEP 2144.05, “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists” (citing In re Wertheim, 541 F.2d 257 (CCPA 1976); In re Woodruff, 919 F.2d 1575 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465 (Fed. Cir. 1997)). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (citing Titanium Metals Corp. of America v. Banner, 778 F.2d 775 (Fed. Cir. 1985)).
Moreover, as stated by MPEP 2144.05, “[g]enerally, 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” (see also In re Aller (220 F.2d 454 (CCPA): “where 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 fact, as further discussed by the court, “[s]uch experimentation is no more than the application of the expected skill of the [ordinarily skilled artisan] and failure to perform such experiments would, in our opinion, show a want of the expected skill”; see also In re Peterson, 315 F.3d at 1325 (Fed. Cir. 2005): “[t]he normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” and “[o]nly if the ‘results of optimizing a variable’ are ‘unexpectedly good’ can a patent be obtained for the claimed critical range” (quoting In re Antonie (559 F.2d 618 (CCPA 1977))).
In the instant case, the concentration of active ingredients (i.e., chlorantraniliprole and ammonium chloride) and disintegrant (i.e., polyvinylpolypyrrolidone (PVPP)) in an effervescent tablet is clearly a result-effective variable. Indeed, as indicated by the court in Ariosa Diagnostics, Inc. v. Sequenom, Inc., 809 F.3d 1282, 1293 (Fed. Cir. 2015), every ordinary artisan in medicine performs what is “merely routine optimization of drug dosage to maximize therapeutic effect.” And, as further taught by Jackish, “the inter-relationship of components... in the recited ranges... effect[s] rapid disintegration of finely dispersed pesticide particles” (Page 2, Lines 8-10). Accordingly, it would have been customary for an artisan of ordinary skill in the art to determine the optimal concentration of chlorantraniliprole, ammonium chloride, and polyvinylpolypyrrolidone (PVPP) to include in the formulation in order to best achieve the desired results.
As such, claims 1, 6, 11, 13 and 19 are rejected as prima facie obvious.
Claims 7, 12 and 14 are drawn to the pesticide tablet of claims 1, 11 and 13, respectively, wherein the content of surfactant is 1 to 30 parts by weight based on 100 parts by weight of the extender (claim 7), wherein the content of disintegrant (PVPP) is 8 to 40 parts by weight based on 100 parts by weight of the extender, and wherein the content of extender is 2,857 parts by weight or less based on 100 parts by weight of the PVPP - wherein 2857 parts by weight or less extender based on 100 parts by weight PVPP is the same as 3.5 parts by weight or more disintegrant (PVPP) based on 100 parts by weight extender (claim 14).
At the outset, the amount of surfactant in Examples 1 and 2 of Jackish is about 6.5% by weight based on the total composition, or about 10.83 to about 21.67 parts by weight based on 100 parts by weight of extender (wherein the composition comprises 30% to 60% extender, as taught by CN 102515936A (Paragraph 0016)). And the amount of disintegrant in Examples 1 and 2 of Jackish is about 1.2% by weight based on the total composition, or about 2 to about 4 parts by weight based on 100 parts by weight of extender (wherein the composition comprises 30% to 60% extender, as taught by CN 102515936A (Paragraph 0016)) wherein, as further taught by Jackish, the amount disintegrant can be from “about 0.1% to 5%” (Page 1, Lines 34-35) or about 0.167 to about 16.67 parts by weight based on 100 parts by weight of extender (wherein the composition comprises 30% to 60% extender, as taught by CN 102515936A (Paragraph 0016)).
And, as discussed by MPEP 2144.05, “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists” (citing In re Wertheim, 541 F.2d 257 (CCPA 1976); In re Woodruff, 919 F.2d 1575 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465 (Fed. Cir. 1997)).
Additionally, it would have been obvious to determine the amount of surfactant and disintegrant to include in the composition. As stated by MPEP 2144.05, “[g]enerally, 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” (see also In re Aller (220 F.2d 454 (CCPA): “where 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…” Indeed, as further discussed by the court, “[s]uch experimentation is no more than the application of the expected skill of the [ordinarily skilled artisan] and failure to perform such experiments would, in our opinion, show a want of the expected skill”; see also In re Peterson, 315 F.3d at 1325 (Fed. Cir. 2005): “[t]he normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” and “[o]nly if the ‘results of optimizing a variable’ are ‘unexpectedly good’ can a patent be obtained for the claimed critical range” (quoting In re Antonie (559 F.2d 618 (CCPA 1977))).
In the instant case, the concentration of surfactant and disintegrant in an effervescent tablet is clearly a result-effective variable. Indeed, as taught by Jackish, “the inter-relationship of components... in the recited ranges... effect[s] rapid disintegration of finely dispersed pesticide particles” (Page 2, Lines 8-10). Accordingly, it would have been customary for an artisan of ordinary skill in the art to determine the optimal amount of surfactant and disintegrant (and, thus, the content thereof relative to 100 parts by weight of the extender) to include in the formulation in order to best achieve the desired results.
For all the foregoing reasons, claims 7, 12 and 14 are also rejected as prima facie obvious.
Claim 15 is drawn to the pesticide tablet of claim 1, wherein the disintegration and dispersion time of the pesticide effervescent tablet is 60 seconds or shorter, and wherein the hardness of the pesticide effervescent tablet is from 50 to 200 Newtons (N).
At the outset, it is recognized that Jackish teach that “[t]he tablets of this invention combine a high level of physical integrity with rapid break-up in water” (Page 5, Lines 33-34) and “disperse completely in less than 10 minutes, most in less than 5 minutes using even cold water drawn from wells in the early spring” (Page 6, Lines 10-13), wherein Example 1 “took 2 min and 23 sec to dissolve in 25oC water” (Page 8, Line 27) and Example 2 “took 2 min and 50 s to dissolve in 25oC water” (Page 9, Line 14). Additionally, Jackish teach that “[g]ood tablets normally have [breaking] strengths in the range of 8.896x103 to 4.448x104 N” (Page 8, Lines 9-10) although this is understood as a typo and, based on formation of Example 1 “with a hand-operated hydraulic press at a pressure of 525 kg/cm2” (Page 8, Line 15), is understood as around 9 to 44 N.
Nevertheless, it is asserted, absent evidence to the contrary, that the prima facie obvious effervescent tablet comprising chlorantraniliprole, ammonium chloride polyvinylpolypyrrolidone (PVPP), surfactant, and sodium bicarbonate as claimed would necessarily exhibit the instantly claimed properties. While evidence of those properties may be unexpected in light of Jackish, the instant claims are, at minimum, not drafted commensurate in scope with any such properties.
As such, claim 15 is also rejected as prima facie obvious.
Claim 17 is drawn to the pesticide tablet of claim 1, wherein the suspension ratio of the pesticide tablet is from 60 to 80%, and wherein the powder degree of the pesticide effervescent tablet is from 95 to 100%.
It is asserted, absent evidence to the contrary, that the prima facie obvious effervescent tablet comprising chlorantraniliprole, ammonium chloride polyvinylpolypyrrolidone (PVPP), surfactant, and sodium bicarbonate as claimed would necessarily exhibit the instantly claimed properties.
As such, claim 17 is also rejected as prima facie obvious.
Conclusion
The new ground(s) of rejection presented in this Office action are necessitated by Applicant’s amendments to the claims. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
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/CRAIG D RICCI/Primary Examiner, Art Unit 1611
1 CN 102515936A teaches “an insecticide fertilizer granule for rice” (Paragraph 0002) wherein the insecticide is chlorantraniliprole in an amount of 0.05-10% by weight (Paragraph 0016) and “[t]he carrier fertilizer is a mixture of one or more of ammonium chloride, ammonium sulfate, potassium chloride, potassium sulfate, and monoammonium phosphate” (Paragraph 0017) in an amount of 30-60% by weight (Paragraph 0016), which embraces a ratio of chlorantraniliprole:ammonium chloride of 1:3 to 1:1200.
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