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 .
Applicant’s amendment filed 3/2/2026 has been entered. Claims 1, 6, 9 and 14 were amended. New claims 39-43 were added. Claims 24-31 are withdrawn. Claims 1, 4-11, 14-22, 24-31 and 34-38 are pending. Claims 1, 4-11, 14-22 and 34-43 are under examination.
Withdrawn rejections
Applicant's amendments and arguments filed 3/2/1016 are acknowledged and have been fully considered. Any rejection and/or objection not specifically addressed below is herein withdrawn.
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 11, 41 and 42 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.
Claims 11, 41 and 42 recite two trademarks, Tween and Span, which should be removed. MPEP 2173.05(u) states that when a trademark is used in a claim as a limitation to identify/describe a product, the claim is indefinite. 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.
Second, in this claim the trademark is used as a definition in parenthesis following a chemical name, however, the trademark is narrower than the chemical name due to the number and is therefore, interpreted as exemplary, which raises its own indefinite issues is it is indeterminable whether the example in parentheses is merely exemplary of the chemical name or limits the claim to the specific examples.
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 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.
Claims 1, 4-11, 14-16, 34-36 and 39-43 are rejected under 35 U.S.C. 103 as being unpatentable over Phan et al. (CA 2687367; published December 4, 2008) in view of Shirakawa (EP 0289636; published November 9, 1988).
Applicant’s Invention
Applicant claims a multiphase composition comprising A)lipophilic droplets containing 0.2-10% of a mixture of phytosterols comprising at least 30% beta-sitosterol with campesterol, stigmasterol and brassicasterol, dispersed in an aqueous phase to form and oil-in-water emulsion, the composition further comprising at least one first surfactant (SF1) located at the interface of the lipophilic droplets and of the aqueous phase and at least one second surfactant (SF2) suspended in the aqueous phase having the form of particles insoluble in the aqueous phase. (claim 1)
Applicant claims an agricultural kit containing the composition of claim 1 and at least one active ingredient selected from phytopharmaceutical product, biocontrol product and/or a nutrient. (claim 16).
Determination of the scope and the content of the prior art
(MPEP 2141.01)
With respect to claims 1, 4-11, 14-16, 34-36 and 39-43 of the instant application, Phan et al. teach oil-in-water emulsions wherein the interior or the oil droplets exhibit interfaces between lipophilic and hydrophilic or amphiphilic domains due to a lipophilic additive inside the oil droplets which delay release of at least one active element (abstract). Active elements include phytosterols (page 4, line 17; limitation of claims 1 and 34). The range of the active is from 0.000 ppm to lower than 80% of the total composition (page 10, lines 4-13; limitation of claim 34). The lipophilic additive (SF1) is selected from sorbitan esters (encompassing sorbitan monolaurate, Span 20), phospholipids (encompassing soy lecithin) polyoxyethylene sorbitan esters (encompassing Tween 80), sugar esters (encompassing saccharose stearate and saccharose palmitate), sucrose esters (encompassing sucrose stearate) and mixtures thereof (page 7, line 26 through page 8, line 5; page 13, line 20 through page 14, line 29; limitations of claims 1, 6-11, 14 and 39-43). The active element includes medicaments, drugs, nutrients, chemicals for agro-chemical applications, phytosterols and combinations thereof (page 12, line 25 through page 13, line 18; page 18, lines 22-29). Table 1 discloses linalool, a compound known the be antimicrobial and antifungal, as a preferred active compound used in a concentration of 100ppm (page 22, lines 1-12; limitation of claims 15, 16, 35 and 36). A specific dispersion comprising 0.294% soy lecithin (Epikuron 200), 0.595% diacylglycerol, 0.115% soybean oil, 98.886% water and 0.110% Tween 80 are disclosed (Example 2; limitation of claims 4, 5 and 43).
With respect to claim 9, Phan et al. do not specify the first and second surfactants are fatty acid esters in the form of a mixture containing 20-80% by weight saccharose stearate and 20-80% by weight saccharose palmitate, however, Phan et al. teaches mixtures of sugar esters which inherently encompasses any mixture of saccharose stearate and saccharose palmitate. Furthermore, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
With respect to claim 1, Phan et al. teach selecting phytosterols but is silent to a mixture of phytosterols comprising at least 30% by weight beta-sitosterol with the balance of the mixture comprising campesterol, stigmasterol and brassicasterol. It is for this reason that Shirakawa is joined.
Shirakawa teach emulsified or solubilized sterol compositions wherein said sterol is emulsified or solubilized into an aqueous solution of sucrose fatty acid esters and improved shelf stability of agricultural chemicals (abstract). Preferred sucrose fatty acid esters are sucrose stearate and sucrose palmitate (page 3, lines 6-10). A distinguishing factor is that surfactants may comprise 0.5-10 parts by weight of the composition and the sterol is completely solubilized in amounts of 1.5 parts by weight or more (page 3, lines 19-22). A preferred mixture of sterols comprise 50% beta-sitosterol, 28% campesterol, 15% stigmasterol and 7% brassicasterol (composition 1, page 4).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
Phan et al. and Shirakawa are both drawn to agricultural formulations comprising nutrients and phytosterols. Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Phan et al. and Shirakawa and make an agricultural composition comprising a mixture of phytosterols comprising at least 30% by weight beta-sitosterol with the balance of the mixture comprising campesterol, stigmasterol and brassicasterol with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of the filing to combine the teachings of Phan et al. and Shirakawa to further include a mixture of phytosterols comprising at least 30% by weight beta-sitosterol with the balance of the mixture comprising campesterol, stigmasterol and brassicasterol because mixtures of sterol in this range are known to be emulsified or solubilized to form shelf stable formulations.
Claims 17-22, 37 and 38 are rejected under 35 U.S.C. 103 as being unpatentable over Phan et al. (CA 2687367; published December 4, 2008) in view of Shirakawa (EP 0289636; published November 9, 1988), as applied to claims 1, 4-11, 14-16, 34-36 and 39-43 in further view of Subedi et al. (Mungbean productivity under different levels of microfertilizers loading in Chitwan Nepal, International Journal of Agricultural Science Research, Vol.2(1), pp. 001-007, January 2013).
Applicant’s Invention
Applicant claims a multiphase composition comprising A)lipophilic droplets containing 0.2-10% of a mixture of phytosterols comprising at least 30% beta-sitosterol with campesterol, stigmasterol and brassicasterol, dispersed in an aqueous phase to form and oil-in-water emulsion, the composition further comprising at least one first surfactant (SF1) located at the interface of the lipophilic droplets and of the aqueous phase and at least one second surfactant (SF2) suspended in the aqueous phase having the form of particles insoluble in the aqueous phase. (claim 1)
Applicant claims an agricultural kit containing the composition of claim 1 and at least one active ingredient selected from phytopharmaceutical product, biocontrol product and/or a nutrient. (claim 16).
Determination of the scope and the content of the prior art
(MPEP 2141.01)
The teachings of Phan et al. and Shirakawa are addressed in the above 103 rejection.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
With respect to claims 17-22, Phan et al. and Shirakawa teach active ingredients include nutrients but are silent to the specific micronutrients selected from a boron compound and a molybdenum compound, preferably between 0.01-2 wt.% boric acid and between 0.002-1 wt.% sodium molybdate dihydrate, respectively. It is for this reason that Subedi et al. is joined.
Subedi et al. teach nutritionally improved mungbean and optimum boric acid and sodium molybdate loading concentrations for enhancing mungbean productivity (page 002). The micronutrients were loaded through seed priming in concentrations of 250-750 ppm (0.025-0.075 wt.%) and both boron and molybdenum were known to improve seed vigor and result in better yield (page 003; Table 1).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
Phan et al., Shirakawa and Subedi et al. are all drawn to agricultural formulations comprising nutrients. Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Phan et al., Shirakawa and Subedi et al. an make an agricultural composition comprising 0.025-0.075 wt.% boric acid and sodium molybdate with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of the filing to combine the teachings of Phan et al., Shirakawa and Subedi et al. to further include 0.025-0.075 wt.% boric acid and sodium molybdate because Subedi et al. teach boric acid and sodium molybdate in concentrations of 250-750 ppm (0.025-0.075 wt.%) were known to improve seed vigor and result in better yield.
Response to Arguments
Applicant's arguments filed 3/2/2026 have been fully considered but they are not persuasive.
Applicant argues that that multiphase agricultural composition claimed is non-obvious in view of Phan and Shirakawa since the composition includes a second surfactant SF2 that is suspended in the form of insoluble particles because it is added after cooling. The Examiner is not persuaded by this argument because the claims are drawn to the final composition not the method of making the composition. Additionally, Phan et al. teach oil-in-water emulsions wherein the interior or the oil droplets exhibit interfaces between lipophilic and hydrophilic or amphiphilic domains due to a lipophilic additive inside the oil droplets which delay release of at least one active element (abstract). Active elements include phytosterols (page 4, line 17). Shirakawa teach emulsified or solubilized sterol compositions wherein said sterol is emulsified or solubilized into an aqueous solution of sucrose fatty acid esters and improved shelf stability of agricultural chemicals (abstract). Therefore, forming the claimed compositions would have been prima facie obvious in view of the teachings of Phan in view of Shirakawa.
Applicant further argues that the emulsifier of Phan is located between the oil and water phases as a surfactant and is soluble in the lipophilic phase and Shirakawa explicitly requires that no fats or oils are used as a solvent whereas the claims require lipophilic droplets dispersed in an aqueous phase to form oil-in-water emulsions. The Examiner is not persuaded by this argument because Phan et al. teach oil-in-water emulsions wherein the interior or the oil droplets exhibit interfaces between lipophilic and hydrophilic or amphiphilic domains due to a lipophilic additive inside the oil droplets which delay release of sterols. Shirakawa teach that sterols can be emulsified or solubilized sterol into an aqueous solution of sucrose fatty acid esters and improved shelf stability of agricultural chemicals (abstract). Therefore, one of ordinary skill would have been able to select different surfactants in sterol formulations to optimize properties in the emulsion with routine optimization since surfactants selected from fatty acid sugar esters, sorbitan esters, polyoxyethylene sorbitan esters and lecithin are used to formulate phytosterols in emulsion and Shirakawa teaches that sucrose fatty acid esters are known to improve shelf stability of agricultural chemicals.
Conclusion
No claims allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. 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 nonprovisional extension fee (37 CFR 1.17(a)) 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 mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIELLE D JOHNSON whose telephone number is (571)270-3285. The examiner can normally be reached Monday-Friday 9:00 am-5:30 pm.
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DANIELLE D. JOHNSON
Examiner
Art Unit 1611
/KYLE A PURDY/Primary Examiner, Art Unit 1611
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