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 § 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.
Claims 4-6 are rejected under 35 U.S.C. 101 because the claimed invention lacks patentable utility. The use of the phrase “the use” makes it unclear of which statutory class the claims fall under. The claims language set no statutory class of a method of use or composition of matter. If they are meant to be a method, an active step is missing.
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 4-6 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 4-6, the phrase "the use" renders the claim indefinite because it is unclear which statutory class the claims fall into. If they are meant to be a method, an active step is missing. If they are meant to be a composition of matter, it is unclear if the “use” is a future intended use. The claims refer to a use of the composition without setting the limitation for the intended use of the composition of claims 4-6. Should applicant intend the claims to be a method of treatment claims the following language is suggested:
A method of preventing and controlling wheat scab and stem base rot disease caused by fusarium comprising administrating a composition comprising cyclobutrifluram and prochloraz, with a mass ratio of 20:1 to 1:20 for cyclobutrifluram and prochloraz.
Regarding claim 4, the phrase "according to any one of claim 1" renders the claim indefinite because it is unclear if applicant is intending claim 1 has one or more composition or applicant meant the above phrase to suggest any of claims 1-3. Ultimately, the metes and bounds of the claim is unclear.
Claim Rejections - 35 USC § 102
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.
Claims 1-3 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Ge et al. (CN 117598312 A), published 02/27/2024, with an effective filling date of 11/22/2023. Applicant has not provided an English translation for their foreign priority application, thus the effective filing date of claimed invention is 07/30/2024.
Regarding claims 1-3, Ge teaches a fungicidal composition for the prevention and control of wheat scab caused by Fusarium comprising administration of a composition comprising active ingredients of Cyclobutrifluram and prochloraz, wherein the mass ratio of Cyclobutrifluram to prochloraz is 1:50 to 54:1 (relevant to claims 1-2) (abstract, Para. 0002-0004). Ge additionally teaches Cyclobutrifluram and prochloraz is 1 % to 70 % of the total weight of the composition (relevant to claim 3) (para. 00014).
Conclusion
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MIKHAIL O'DONNEL. ROBINSON
Examiner
Art Unit 1627
/MIKHAIL O'DONNEL ROBINSON/Examiner, Art Unit 1627
/SARAH PIHONAK/Primary Examiner, Art Unit 1627
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