DETAILED ACTION
Status of Application
Preliminary amendments to the claims, filed 09/20/2024, are acknowledged. Claims 1-17 are pending in this action. Claims 3-7, 9-16 have been amended. Claims 1-17 are currently under consideration.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . 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.
Priority
This application is a 371 of PCT/EP2023/057558, filed March 23, 2023, which claims benefit of foreign priority to EP22163755.6, filed March 23, 2022.
Specification
The specification is objected to because of the following informalities:
The data provided in the specification are unclear, given that the data are shown without units of measurements, e.g., “%” (Pages 2-4, 9).
The specification comprises typographic errors, e.g., “300g / ha” (Pages 3-4), “1000 l / ha” (Page 4) that need to be corrected to “300 g/ha”, “1000 l/ha”, respectively, or clarified.
The use of the trademarks/trade names has been noted in this application *e.g., Pages 6-9). Although the use of trademarks/trade names is permissible in patent applications, the proprietary nature of the trademarks/trade names should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as trademarks. The use of language such as “the product X (a descriptive name) commonly known as Y (trademark)” is not permissible since such language does not bring out the fact that the latter is a trademark. Language such as “the product X (a descriptive name) sold under the trademark Y” is permissible. MPEP §608.01(v). Further, it is noted that the trademarks/trade names are used to identify a source of goods, and not the goods themselves. The formula or characteristics of the product may change from time to time and yet it may continue to be sold under the same trademark/trade name. Thus, a trademark/trade name does not identify or describe the goods associated with the trademark/trade name. Appropriate correction is required.
Appropriate correction is required.
Information Disclosure Statement
The information disclosure statement, filed 09/20/2024, is acknowledged and has been considered. Please see the attached initialed PTO-1449.
Claim Objections
Claims 1-4, 12-15 are objected to because of the following informalities:
Claim 1 comprises the typographic error “300g / ha” that needs to be corrected to “300 g/ha”, or clarified. Similar is applied to claims 2-3.
Claim 1 comprises the typographic error “rate of 1 to 5” that needs to be corrected to “rate of from 1 to 5”, or clarified. Similar is applied to claims 12-15.
It is suggested that in claim 1 the limitation “5 billion IJ/ha” should be corrected to “5 billion infective juvenile per hectare” (see claim 9).
Claim 4 comprises the typographic error “l/ha water” that needs to be corrected to “l/ha of water”, or clarified.
Claims 12 and 13 are identical.
Claim 14 comprises the typographic error “2 to3” “that needs to be corrected to “2 to 3”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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 1-16 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 pre-AIA the applicant regards as the invention.
Claim 1 is unclear and indefinite, because the “method steps” and/or “combination” to be used in the claimed method are not clearly delineated. In the present case, it is noted that claim 1 recites the limitation “using a combination of” that is not clear. Does said claim disclose separate compositions, OR a mixture comprising recited compounds/constituents? To this point, it is noted that “[i]f a claim is amenable to two or more plausible constructions, applicant is required to amend the claim to more precisely define the metes and bounds of the claimed invention or the claim is indefinite under §112, ¶ 2. Ex parte Miyazaki, 89 USPQ2d 1207 (BPAI 2008) (expanded panel).” Further, “Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Similar is applied to claim 11 regarding the limitation “in conjunction with”. Clarification is required.
Claim 3 is unclear and indefinite, because the claim recites a broad range/limitation (i.e., “at a rate of 100-300 g/ha”) together with a narrow range/limitation (i.e., “preferably at a rate of 120 g/ha”) that falls within the broad range/limitation in the same claim. Therefore, the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. MPEP § 2173.05(c). Similar is applied to claims 4-5, 9. Clarification is required.
Claim 5 recites the limitation “pest is Tipula paludosa & Tipula oleracea” that is unclear. This limitation was interpreted as best understood as “pest is Tipula paludosa or Tipula oleracea”. Clarification is required.
Claim 6 recites the limitation “nematode is selected from the Heterorhabditis genera and/or the Steinernema genera” that is not reasonably clear, because the constituents to be included into the claimed composition to be used in the claimed method are not clearly delineated. Applicant is advised to use the proper Markush group language, e.g., “selected from the group consisting of A, B, … and mixtures thereof” to clearly define constituents that can be used in the claimed product. Similar is applied to claim 7. Clarification is required.
Claim 10 recites the limitation “entomopathogenic nematodes are applied in an aqueous spray composition applied to the locus is from 500 to 1000 l/ha” that is unclear, because the recites numerical limitation is not clearly defined. Clarification is required.
Claims 2, 8, 12-16 are rejected as being dependent on rejected independent claim 1 and failing to cure the defect.
Claim Rejections - 35 USC § 102(a)(1)
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.
Claim 17 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sikuljak et al., US 2018/0049435 A1 (hereinafter referred to as Sikuljak).
Sikuljak teaches pesticidal mixtures/compositions that may include: (i) Heterorhabditis bacteriophora, Steinernema carpocapsae, Steinernema feltia (Claim 1; Para. 0024, 0059-0060, 0150, 0161) identified in the instant application as entomopathogenic nematodes; (ii) chlorantraniliprole (Claim 8; Para. 0168, 0170); and (iii) additional compounds/partners (Para. 0209), e.g., at least one auxiliary (Para. 0034, 0193-0198, 0216); wetters, adjuvants, etc. (Para. 0216). Sikuljak further teaches that said compositions can be used for efficiently combating such insects as Tipula oleracea, Tipula paludosa (Para. 0314), and can be in a form of a spray (Para. 0193, 0242, 0298).
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
US 2017/0188584 A1 - teaches pesticidal mixtures/compositions that may include: (i) Heterorhabditis bacteriophora, Steinernema carpocapsae (Para. 0064) identified in the instant application as entomopathogenic nematodes; (ii) chlorantraniliprole (Para. 0107, 0184, 0185); and (iii) auxiliaries (Para. 0226, 0231); and (iv) can be used for efficiently combating such insects as Tipula oleracea, Tipula paludosa (Para. 0204); and can be in a form of a spray (Para. 0251).
US 2015/0250175 A1 - teaches pesticidal mixtures/compositions that may include: (i) Steinernema feltiae (Para. 0269, 0277) identified in the instant application as entomopathogenic nematodes; (ii) chlorantraniliprole (Para. 0084, 0418-0421); and (iii) auxiliaries (Para. 0451); and (iv) can be used for efficiently combating such insects as Tipula oleracea, Tipula paludosa (Para. 0436, 0441), and can be in a form of a spray (Para. 0546).
Allowable Subject Matter
The following is a statement of reasons for the indication of allowable subject matter: The prior art does not teach a method for controlling a Tipula spp. insect larvae pests at a turfgrass locus by sequentially applying specific amount of chlorantraniliprole to the locus of the pest, followed by an application of specific amount of entomopathogenic nematodes to said locus. Applicant teaches that said approach allows enhancing the effectiveness of chlorantraniliprole in the control of Tipula spp. insect larvae in turf when it is co-applied with entomopathogenic nematode.
Conclusion
Claim 17 is rejected.
Claims 1-16 are rejected, but would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to OLGA V. TCHERKASSKAYA whose telephone number is (571)270-3672. The examiner can normally be reached 9 am - 6 pm, Monday - Friday.
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/OLGA V. TCHERKASSKAYA/
Examiner, Art Unit 1615
/SHIRLEY V GEMBEH/Primary Examiner, Art Unit 1615
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