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 .
Response to Amendment and Argument
Claims 1, 5-12 and 15-18 are pending and under examination in this office action.
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Claims 1, 5, 9-12 15-18 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. Is withdrawn bases on the amendment to the claims.
Maintained 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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.
Claim(s) 1, 5-12 and 16-18 stand rejected under 35 U.S.C. 103 as being unpatentable over Vadakekuttu et al. (US 2018/0325105) in view of Bos et al. (WO 2021/074831).
Vadakekuttu teaches with regards to instant claim 1,a granular composition comprising fungicide (see 0064), that comprises inorganic compound (i.e., tribasic copper sulphate (-TBCS), as required by instant claims 1-2, see 0065), one or more anionic surfactant include wherein the sulfonic acid is ammonium lignosulfonate and alkylnaphthalene sulfonic acid (see 0099, 0100,0104, as required by instant claims 1b, 5-6). The reference also teaches a water-disintegrated granular (i.e., water-dispersible granular -WDG as required by instant claim 12, see abstract) comprising one or more fungicide tribasic copper sulfate (i.e., TBCS; see 0065) and zoxamide (see 0065). Additionally, the reference teaches that their composition is for controlling soil borne pest and disease (see 0015), wherein the composition is
However, Vadakekuttu fails to teach the ratio as recited by instant claim 1, 7-8.
Bos teaches the addition of sodium isopropyl naphthalene sulfonate, sodium lignosulfonate and fungicides such as prothioconazole and macozebin a composition for controlling fungi, thus a fungicidal composition (as required by instant claim 12) wherein the weight ration is 1:1 to 20:1 (20:1 to1:1, as required by instant claim 16, see example 6 wherein the weight ratio of the ionic surfactant is 171g/kg is 4.3:1).
It would have been obvious to one of ordinary skill in the art to have determine of the optimum therapeutic index. It is well within the level of the ordinary skill in the art, and the artisan to determine the optimum amounts to get the maximum effect of the drug, hence the reference makes obvious the instant invention. Therefore the combination of the cited prior art would have resulted in the instant claimed invention with a reasonable expectation of success.
With regards to the ratio it would have been obvious to use the substitute granular pesticidal composition comprising pesticidal active such as fungicide comprising one or more of metalaxyl and tribasic copper sulfate or mixture thereof at 0.1% to 60%, 0.1% to 40% or 0.1% to 20% by weight, and surfactant at 0.1% to 85% or 0.1% to 40% such as dispersing agents (as required by instant claims 9-10)one or more of alkali metal salt of lignosulfonic acid, sodium salts of sulfonated naphthalene, salts of naphthalene sulfonic acids and formulate a granular fungicide comprising an inorganic copper compound and a benzamide and an anionic surfactant blend in a ratio from 10:1 to 1:1 as Vadkekekuttu makes it obvious to do so as the ratio of metalaxyl and tribasic copper sulfate to anionic surfactant 1:1 to 20:1 is easily obtained according to 0.1% to 60% of metalaxyl and tribasic copper sulfate as well as surfactant at 0.1% to 85% or 0.1% to 40%.
Applicant argues that “The primary reference, Vadakekuttu, is directed broadly to water-disintegrable agricultural granules containing nutrients, algae, or pesticidal active ingredients. The emphasis of Vadakekuttu is on granule technology and physical properties such as density, hardness, attrition resistance, and disintegration characteristics. Although Vadakekuttu identifies TBCS and zoxamide individually among an extensive list of possible pesticidal active ingredients, it does not disclose or suggest a fungicide component comprising the particular combination of TBCS and zoxamide. The mere inclusion of TBCS and zoxamide among numerous possible pesticidal active ingredients does not provide a reason for a person of ordinary skill in the art to select these two particular active ingredients and combine them in the manner presently claimed.
In response the instant claims do recite a granular composition comprising fungicide (see 0064), wherein the two agents tribasic copper sulfate and zoxamide and an anionic sulfate are present (see rejection above). Applicant should note that The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggests the combination to achieve the same advantage or result discovered by applicant. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006) (see MPEP 2144). Therefore, Applicant’s argument is found unpersuasive.
With regards to the weight ratios, it is within the purview of the skilled artisan to determine composition in the amounts as the amount is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ. It would have been customary for an artisan of ordinary skill to determine the optimal amount of the active ingredient in order to best achieve the desired results. Thus, absent some demonstration of unexpected results from the claimed parameters, this optimization of dosage amount would havebeen obvious at the time of applicant's invention.
Claim(s) 15 stand rejected under 35 U.S.C. 103 as being unpatentable over Vadakekuttu et al. (US 2018/0325105) for the reason below/
Vadakekuttu teaches with regards to instant claim 15, a process for preparing a water dispersible granular fungicidal composition comprising the agrochemical (i.e., inorganic copper compound and benzamide by mixing (blending to get a premix), and the granular coated.
The process of preparing a water dispersible granular fungi would have been obvious to one of ordinary skill in the art as the “hypothetical ‘person having ordinary skill in the art’ to which the claimed subject matter pertains would, of necessity have the capability of understanding the scientific and engineering principles applicable to the pertinent art.” Ex parte Hiyamizu, 10 USPQ2d 1393, 1394 (Bd. Pat. App. & Inter. 1988).
Maintained 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 1-12 and 15-18 stand provisionally rejected under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claims 1-16, 19-21 of U.S. Patent Application No. 18835471 in view of Vadakekuttu et al. (US 2018/0325105). Although the conflicting claims are not identical, they are not patentably distinct from each other. The reasons are as follows:
· Both sets of claims refer to granular fungicidal composition comprising:(a) a fungicide component; and (b) an anionic surfactant blend; wherein a weight ratio of the fungicide component to the anionic surfactant blend is 1:1 to 20:1. in the copending applicationand the instant claima are drawn to a granular fungicidal composition comprising:(a) a fungicide component comprising an inorganic copper compound and a benzamide fungicide; and (b) an anionic surfactant blend; wherein a weight ratio of the fungicide component to the anionic surfactant blend is from about 10:1 to about 1:1. The current application claims are obvious variation of the copending application claims
· Both applications recite using the same compositions and/or derivatives thereof. Differ only in that the fungicide agent as a phenylalamide and the current claims fungicide is a benzamide. It would have been obvious to one of ordinary skill in the art to have substituted one the benzamide for a phenylalamide and would expect a reasonable expectation of success. The compositions recited in the claims are anticipatory of each other.
· In view of the foregoing, the copending application claims and the current application claims are obvious variations.
Applicant request holding the double patenting rejection in abeyance.
No claims are allowed.
THIS ACTION IS MADE FINAL. 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 mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHIRLEY V GEMBEH whose telephone number is (571)272-8504. The examiner can normally be reached M-F 9am-6pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert A. Wax can be reached at 571-272-0623. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SHIRLEY V GEMBEH/Primary Examiner, Art Unit 1615 09/25/26
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