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 .
Status of the Claims
Claims 1-14 are pending and under examination (claim set as filed on 8/1/2024).
Priority
Applicant is advised of possible benefits under 35 U.S.C. 119(a)-(d) and (f), wherein an application for patent filed in the United States may be entitled to claim priority to an application filed in a foreign country.
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. EP22154589.0, filed on 2/1/2022, and thus this application has priority benefit to the earliest effective filling date of 2/1/2022.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 10/9/2024 is considered, initialed, and attached hereto. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claim 3 is objected to because of the following informalities: the recitation of “A process of using of pelargonic acid” is grammatically incorrect. Appropriate correction is required to change to “A process of using pelargonic acid”.
Claim Interpretation
Claim 1 recites “a plant susceptible to attack by a pest” in the body of the claim. The instant specification does not provide a definition as to what a plant susceptible to attack by a pest means or how it is distinct from any other plant. Therefore under broadest reasonable interpretation, any plant reads on the claimed limitation as any plant could reasonably be considered susceptible to attack by a kind of pest.
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 1-14 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 1 is rendered indefinite as the preamble of the claim recites a method of controlling arthropod pests on “cereal plants”, however the steps of the method in the body of the claim is directed toward applying pelargonic acid to a “plant susceptible to attack by a pest”. One would not understand if the limitation is directed towards a cereal plant or a plant susceptible to attack, and therefore the meaning of the step is unclear. As noted in the claim interpretation section above, the broadest reasonable interpretation was applied and thus any plant reads on the claim limitation of “plant susceptible to attack by a pest”.
Claims 1, 2, and 8 recite the word “preferably” which renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claims 4-14 are rejected for depending on claim 1.
Claim 3 recites “A process of using” which renders the claim indefinite as there are no actionable steps provided in the claimed process. The claim merely recites the use of the pelargonic acid to control and/or prevent damage by infestation of arthropod pests, but it does not recite any active steps to limit how the use is practiced. See MPEP 2173.05(q).
Claims 9-10 recite the term “(B)”. This renders the claim indefinite as it is uncertain as to what (B) is in reference to and there is no mention of a preceding (A) step in the claims aforementioned. It is suggested that the applicant remove the (B) component as it renders the claim unclear if there is additional preceding component(s) before the (B) part.
Claims 11-14 are rejected for depending on claims 9-10.
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.
Claims 12-14 are 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.
Claim 12 is dependent on claim 1 which recites the limitation “cereal plant” or “plant susceptible to attack by a pest”. However, claim 12 also recites a more generalized limitation of a “plant” and therefore is improperly broadening the scope of the claim of which it depends on. Applicant may cancel the claims, amend the claims to place the claims in proper dependent form, rewrite the claims in independent form, or present a sufficient showing that the dependent claims complies with the statutory requirements.
Claims 13-14 are rejected for depending on claim 12.
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 3 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 because it attempts to recite a process of use without also properly setting forth any active steps for carrying out said process. Thus the claimed invention is not supported by a specific utility. See MPEP 2173.05(q).
Claim Rejections - 35 USC § 102
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 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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3 and 5-9 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by De Saegher (Publication No. WO/2020/104645 – date of publication 5/28/2020).
De Saegher’s general disclosure relates to applying a pelargonic acid (C9:0 fatty acid) salt to plants (see abstract).
Regarding claims 1-3, De Saegher anticipates applying a composition comprising pelargonic acid (also known as C9:0 fatty acid) to a plant susceptible to attack by a phytopathogenic fungi pest (see pg. 8, ¶ 4). As De Saegher discloses the application of the pelargonic acid to the plants as also recited in the claim, the preamble’s recitation would be the implicit outcome. As noted in the 112b rejection above, claim 1 recites both “cereal plant” and “plant susceptible to attack by a pest” and thus the meaning of the limitation is indefinite. As defined in the claim interpretation section, prior art reciting a plant could read on the claim under broadest reasonable interpretation. Furthermore, as noted in the 112b and 101 rejections above, claim 3 is a “use claim” which renders the claim indefinite as there are no actual steps limiting the process nor is it considered to be a proper process claim as it lacks clear requisite steps. See MPEP 2173.05(q).
Regarding claim 5, De Saegher anticipates the pelargonic acid composition further comprises a carrier (see pg. 8, ¶ 7).
Regarding claim 6, De Saegher anticipates the pelargonic acid composition is applied as spray onto the plant parts (see De Saegher pg. 8, ¶ 4) and this reads on “foliar” as it is defined in the instant specification as the application to the foliage of the plant (see specification pg. 33, lines 31-30).
Regarding claim 7, De Saegher anticipates the plant exhibits low phytotoxicity following application of the pelargonic acid composition (see pg. 8, ¶ 6).
Regarding claim 8, De Saegher anticipates the pelargonic acid was applied at a concentration between 0.00001%-5% (see pg. 8, ¶ 4) which converts to 100-50,000,000 g/ha. The prior art range encompasses the claimed range of 300-6,500 g/ha and therefore reads on the limitation.
Regarding claim 9, De Saegher anticipates applying additional active agents choline caprylate or choline caprate (see pg. 8, ¶ 7).
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.
Claims 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Davies (Publication No. WO 2021/113419 A1 – date of publication 6/10/2021).
Davies’s general disclosure relates to an insecticidal composition to control pests (see abstract).
Regarding claims 1-3, Davies teaches applying an active ingredient comprising pelargonic acid (see pg. 10, line 17) to cereal plants (see pg. 15, ¶ 3) to control arthropod pests, of which acari insects such as mites are taught (see pg. 19, ¶ 1). As noted in the 112b rejection above, claim 1 recites both “cereal plant” and “plant susceptible to attack by a pest” and thus the meaning of the limitation is indefinite. As defined in the claim interpretation section, prior art reciting a plant could read on the claim under broadest reasonable interpretation. Furthermore, as Davies suggests the application of the pelargonic acid to the plants as also recited in the claim, the preamble’s recitation would be the implicit outcome. As noted in the 112b and 101 rejections above, claim 3 is a “use claim” which renders the claim indefinite as there are no actual steps limiting the process nor is it considered to be a proper process claim as it lacks clear requisite steps. See MPEP 2173.05(q).
However, Davies does not teach combining the pelargonic acid pesticide with the method of controlling arthropod pests on plants in one singular embodiment and one would not immediately envisage pelargonic acid.
Though it would be obvious to one of ordinary skill in the arts before the effective filing date to combine the pelargonic acid pesticide to the pest control method as taught in Davies. One would be motivated to do so because Davies suggests the use of pelargonic acid in one example and the use of pesticides against arthropod pests in another example. As such, the ordinary artisan would have found it obvious to combine these elements as Davies suggests an embodiment wherein one or more of the suggested active ingredients can be used in a composition as an insect repellant (see pg. 40, ¶ 7-8 and pg. 41, ¶ 1-2).
Regarding claim 4, Davies teaches the pest is Metopolophium dirhodum or Sitobion avenae (see pg. 21, ¶ 1).
Regarding claim 5, Davies teaches the pelargonic acid is applied together with a carrier (see pg. 43, ¶ 2).
Regarding claim 6, Davies teaches the pelargonic acid is applied as foliar spray (see pg. 50, ¶ 1).
Regarding claim 7, Davies teaches the plants exhibit low phytotoxicity after application of Formula One (which can contain an additional active ingredient such as the suggested pelargonic acid) and the application of the formula can present low toxicity effects, if not beneficial effects on the plants (see pg. 49, ¶ 2).
Regarding claim 8, Davies teaches the pelargonic acid is applied at a concentration of 0.0001-5000 g/ha (see pg. 25, ¶ 2) which is within the claimed concentration range of 300-6,500 g/ha.
Regarding claim 9, Davies teaches applying additional active agents (see pg. 3, ¶ 3).
Regarding claim 10, Davies teaches an applying an additional active agent of a biological control agent (see pg. 15, ¶ 2).
Regarding claim 11, Davies teaches Bacillus spp. as a biopesticide (see pg. 15, ¶ 2). It would have been obvious to add an additional pesticide such as Bacillus firmus, to for its additive effective.
Regarding claim 12, Davies teaches applying the pesticidal Formula One with an additional active ingredient(s) (which can contain an additional active ingredient such as the suggested pelargonic acid) to plants sequentially or simultaneously (see pg. 38, ¶ 3 and pg. 40, ¶ 6). As noted in the 112d rejection above, the claim limitation recites a more general “plants” from a more specified “cereal plants” or “plants susceptible to attack by a pest”, and thus claim 12 (and claims 13-14 for depending on claim 12) improperly broadens the scope of the claim of which it depends on. Furthermore, as noted in the claim interpretation section the term “plants susceptible to attack by a pest” has been broadly reasonably interpreted to mean any plant.
Regarding claim 13, Davies teaches applying the pesticidal Formula One with an additional active ingredient(s) (which can contain an additional active ingredient such as the suggested pelargonic acid) to plants simultaneously (see pg. 38, ¶ 3 and pg. 40, ¶ 6).
Regarding claim 14, Davies teaches applying the pesticidal Formula One with an additional active ingredient(s) (which can contain an additional active ingredient such as the suggested pelargonic acid) to plants sequentially (see pg. 38, ¶ 3 and pg. 40, ¶ 6).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of copending Application No. 18/835,030.
This is a provisional nonstatutory double patenting rejection.
Although the claims at issue are not identical, they are not patentably distinct from each other because:
Instant claims are directed towards:
Method of applying pelargonic acid to a plant for controlling pests (claims 1-14)
Wherein the pest is a member of Diabrotica speciosa and Erthesina fullo (claim 4)
Wherein pelargonic acid composition comprises a carrier, is applied as a foliar spray, is applied at a concentration of 300-6,500 g/ha, and wherein it exhibits low phytotoxicity to the plant (claims 5-8)
Wherein the method comprises an additional pesticide and the pelargonic acid, and wherein the additional pesticide are applied sequentially and/or simultaneously (claims 9-14)
Copending Application No. 18/835,030 claims are directed towards:
Method of applying pelargonic acid to a plant for controlling pests (claims 1-18)
Wherein the pest is a member of Diabrotica speciosa (claim 6)
Wherein pelargonic acid composition comprises a carrier, is applied as a foliar spray, is applied at a concentration of 300-6,500 g/ha, and wherein it exhibits low phytotoxicity to the plant (claims 11-14)
Wherein the method comprises an additional pesticide and the pelargonic acid, and wherein the additional pesticide are applied sequentially and/or simultaneously (claims 15-18)
As such, the instant application and the copending application no. 18/835,030 both are directed towards overlapping subject matter.
Claims 1-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-27 of copending Application No. 18/835,031 in view of Davies (Publication No. WO 2021/113419 A1 – date of publication 6/10/2021).
This is a provisional nonstatutory double patenting rejection.
Although the claims at issue are not identical, they are not patentably distinct from each other because:
Instant claims are directed towards:
Method of applying pelargonic acid to a plant for controlling pests (claims 1-14)
Wherein the pest is a member of Diabrotica speciosa (claim 4)
Wherein pelargonic acid composition comprises a carrier, is applied as a foliar spray, is applied at a concentration of 300-6,500 g/ha, and wherein it exhibits low phytotoxicity to the plant (claims 5-8)
Wherein the method comprises an additional pesticide and the pelargonic acid, and wherein the additional pesticide are applied sequentially and/or simultaneously (claims 9-14)
Wherein the additional pesticide is a biological control agent Bacillus firmus (claims 10-11)
Copending Application No. 18/835,031 claims are directed towards:
Method of applying pelargonic acid to a plant for controlling pests (claims 1-27)
Wherein the pest is a member of Diabrotica speciosa (claims 4, 6-11, 13)
Wherein pelargonic acid composition comprises a carrier, is applied as a foliar spray, is applied at a concentration of 300-6,500 g/ha, and wherein it exhibits low phytotoxicity to the plant (claims 18-21)
Wherein the method comprises an additional pesticide and the pelargonic acid, and wherein the additional pesticide are applied sequentially and/or simultaneously (claims 22-27)
Wherein the additional pesticide is a biological control agent Bacillus firmus (claims 23-24)
Copending Application No. 18/835,031 does not claim:
Wherein the plant is a cereal plant
Davies teaches a cereal plant, such as wheat (see pg. 62, ¶ 1).
It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to substitute the cereal plant as taught in Davies for the vegetable plant as taught in ‘031. One would be motivated to do so because Davies teaches that the pesticide can be applied to both cereal plants, such as wheat, and vegetable plants (see pg. 62, ¶ 1). As the two plants are both exemplified as plant loci for the pesticidal application, they could be considered functional equivalents and it would only be a matter of simple substitution to replace one with another.
Claims 1-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of copending Application No. 18/835,032 in view of Davies (Publication No. WO 2021/113419 A1 – date of publication 6/10/2021).
This is a provisional nonstatutory double patenting rejection.
Although the claims at issue are not identical, they are not patentably distinct from each other because:
Instant claims are directed towards:
Method of applying pelargonic acid to a plant for controlling pests (claims 1-14)
Wherein the pest is a member of Diabrotica speciosa (claim 4)
Wherein pelargonic acid composition comprises a carrier, is applied as a foliar spray, is applied at a concentration of 300-6,500 g/ha, and wherein it exhibits low phytotoxicity to the plant (claims 5-8)
Wherein the method comprises an additional pesticide and the pelargonic acid, and wherein the additional pesticide are applied sequentially and/or simultaneously (claims 9-14)
Copending Application No. 18/835,032 claims are directed towards:
Method of applying pelargonic acid to a plant for controlling pests (claims 1-13)
Wherein the pest is a member of Diabrotica speciosa (claim 4)
Wherein pelargonic acid composition comprises a carrier, is applied as a foliar spray, is applied at a concentration of 300-6,500 g/ha, and wherein it exhibits low phytotoxicity to the plant (claims 5-8)
Wherein the method comprises an additional pesticide and the pelargonic acid, and wherein the additional pesticide are applied sequentially and/or simultaneously (claims 9-13)
Copending Application No. 18/835,032 does not claim:
Wherein the plant is a cereal plant
Davies teaches a cereal plant, such as wheat (see pg. 62, ¶ 1).
It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to substitute the cereal plant as taught in Davies for the corn plant as taught in ‘032. One would be motivated to do so because Davies teaches that the pesticide can be applied to both cereal plants, such as wheat, and corn plants (see pg. 62, ¶ 1). As the two plants are both exemplified as plant loci for the pesticidal application, they could be considered functional equivalents and it would only be a matter of simple substitution to replace one with another.
Claims 1-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of copending Application No. 18/835,036 in view of Davies (Publication No. WO 2021/113419 A1 – date of publication 6/10/2021).
This is a provisional nonstatutory double patenting rejection.
Although the claims at issue are not identical, they are not patentably distinct from each other because:
Instant claims are directed towards:
Method of applying pelargonic acid to a plant for controlling pests (claims 1-14)
Wherein the pest is a member of Diabrotica speciosa (claim 4)
Wherein pelargonic acid composition comprises a carrier, is applied as a foliar spray, is applied at a concentration of 300-6,500 g/ha, and wherein it exhibits low phytotoxicity to the plant (claims 5-8)
Wherein the method comprises an additional pesticide and the pelargonic acid, and wherein the additional pesticide are applied sequentially and/or simultaneously (claims 9-14)
Copending Application No. 18/835,036 claims are directed towards:
Method of applying pelargonic acid to a plant for controlling pests (claims 1-13)
Wherein the pest is a member of Diabrotica speciosa (claim 4)
Wherein pelargonic acid composition comprises a carrier, is applied as a foliar spray, is applied at a concentration of 300-6,500 g/ha, and wherein it exhibits low phytotoxicity to the plant (claims 5-8)
Wherein the method comprises an additional pesticide and the pelargonic acid, and wherein the additional pesticide are applied sequentially and/or simultaneously (claims 9-13)
Copending Application No. 18/835,036 does not claim:
Wherein the plant is a cereal plant
Davies teaches a cereal plant, such as wheat (see pg. 62, ¶ 1).
It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to substitute the cereal plant as taught in Davies for the rice plant as taught in ‘036. One would be motivated to do so because Davies teaches that the pesticide can be applied to both cereal plants, such as wheat, and rice plants (see pg. 62, ¶ 1). As the two plants are both exemplified as plant loci for the pesticidal application, they could be considered functional equivalents and it would only be a matter of simple substitution to replace one with another.
Claims 1-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of copending Application No. 18/835,042 in view of Davies (Publication No. WO 2021/113419 A1 – date of publication 6/10/2021).
This is a provisional nonstatutory double patenting rejection.
Although the claims at issue are not identical, they are not patentably distinct from each other because:
Instant claims are directed towards:
Method of applying pelargonic acid to a plant for controlling pests (claims 1-14)
Wherein the pest is a member of Diabrotica speciosa (claim 4)
Wherein pelargonic acid composition comprises a carrier, is applied as a foliar spray, is applied at a concentration of 300-6,500 g/ha, and wherein it exhibits low phytotoxicity to the plant (claims 5-8)
Wherein the method comprises an additional pesticide and the pelargonic acid, and wherein the additional pesticide are applied sequentially and/or simultaneously (claims 9-14)
Wherein the additional pesticide is a biological control agent Bacillus firmus (claims 10-11)
Copending Application No. 18/835,042 claims are directed towards:
Method of applying pelargonic acid to a plant for controlling pests (claims 1-14)
Wherein the pest is a member of Diabrotica speciosa (claim 4)
Wherein pelargonic acid composition comprises a carrier, is applied as a foliar spray, is applied at a concentration of 300-6,500 g/ha, and wherein it exhibits low phytotoxicity to the plant (claims 5-8)
Wherein the method comprises an additional pesticide and the pelargonic acid, and wherein the additional pesticide are applied sequentially and/or simultaneously (claims 9-14)
Wherein the additional pesticide is a biological control agent Bacillus firmus (claims 10-11)
Copending Application No. 18/835,042 does not claim:
Wherein the plant is a cereal plant
Davies teaches a cereal plant, such as wheat (see pg. 62, ¶ 1).
It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to substitute the cereal plant as taught in Davies for the soybean plant as taught in ‘042. One would be motivated to do so because Davies teaches that the pesticide can be applied to both cereal plants, such as wheat, and soybean plants (see pg. 62, ¶ 1). As the two plants are both exemplified as plant loci for the pesticidal application, they could be considered functional equivalents and it would only be a matter of simple substitution to replace one with another.
Claims 1-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of copending Application No. 18/835,047 in view of Davies (Publication No. WO 2021/113419 A1 – date of publication 6/10/2021).
This is a provisional nonstatutory double patenting rejection.
Although the claims at issue are not identical, they are not patentably distinct from each other because:
Instant claims are directed towards:
Method of applying pelargonic acid to a plant for controlling pests (claims 1-14)
Wherein the pest is a member of Diabrotica speciosa (claim 4)
Wherein pelargonic acid composition comprises a carrier, is applied as a foliar spray, is applied at a concentration of 300-6,500 g/ha, and wherein it exhibits low phytotoxicity to the plant (claims 5-8)
Wherein the method comprises an additional pesticide and the pelargonic acid, and wherein the additional pesticide are applied sequentially and/or simultaneously (claims 9-14)
Copending Application No. 18/835,047 claims are directed towards:
Method of applying pelargonic acid to a plant for controlling pests (claims 1-13)
Wherein the pest is a member of Diabrotica speciosa (claim 4)
Wherein pelargonic acid composition comprises a carrier, is applied as a foliar spray, is applied at a concentration of 300-6,500 g/ha, and wherein it exhibits low phytotoxicity to the plant (claims 8-11)
Wherein the method comprises an additional pesticide and the pelargonic acid, and wherein the additional pesticide are applied sequentially and/or simultaneously (claims 12-19)
Copending Application No. 18/835,047 does not claim:
Wherein the plant is a cereal plant
Davies teaches a cereal plant, such as wheat (see pg. 62, ¶ 1).
It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to substitute the cereal plant as taught in Davies for the perennial plant as taught in ‘047. One would be motivated to do so because Davies teaches that the pesticide can be applied to both cereal plants, such as wheat, and perennial plants, such as coffee (see pg. 62, ¶ 1). As the two plants are both exemplified as plant loci for the pesticidal application, they could be considered functional equivalents and it would only be a matter of simple substitution to replace one with another.
Conclusion
No claims are allowed.
Correspondence Information
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/E.R.W./ Examiner, Art Unit 1653
/SHARMILA G LANDAU/ Supervisory Patent Examiner, Art Unit 1653
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