DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1-5 are pending and examined on the merits.
Claim Objections
Claims 1-5 are objected to because of the following informalities:
Claims 1-3 are objected to because of the recitation “bacillus thuringiensis.” The term should be italicized, and the first letter of the genus name should be capitalized (i.e., Bacillus thuringiensis). Since claim 1 is objected to, then its dependent claims are also objected to.
Claim 5 is objected to because the word “the” should be inserted before the recitation “emulsion polymer” in line 2.
Appropriate correction is required.
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 3-5 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 3 is rendered indefinite by the recitation “one of claim 1.” It is unclear what is meant by the recitation. This rejection can be overcome by deleting “one of” in the recitation.
Claims 4 and 5 are rendered indefinite by the recitation “any one of claim 1.” It is unclear what is meant by the recitation. This rejection can be overcome by deleting “any one of” in the recitation.
Notice Re: Prior Art Available Under Pre-AIA and 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 (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.
Claim 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.
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.
Claims 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over Dungworth (US 2019/0216080) in view of Moar (US 6,280,722), Brower (US 2007/0110725), and Wang (CN 103160449. Listed on IDS filed 11/5/24).
Dungworth discloses an emulsion polymer system suitable for use in agrochemical formulations for coating seeds (abstract). The emulsion polymer system comprises: i) stabilizer polymer formed from acrylic acid monomer and vinyl aromatic monomer; and ii) core polymer formed from vinyl aromatic monomer and alkyl ester of acrylic or alkyl acrylic acid monomer (paragraphs [0012]-[0014]).
The stabilizer polymer may be formed from copolymers of acid based monomers and hydrophobic monomers (paragraph [0026]). The acid based monomers of the stabilizer polymer are preferably monomers of acrylic acid (paragraph [0034]). Additionally, the hydrophobic monomers may be vinyl aromatic monomer (paragraph [0036]). The vinyl aromatic monomer(s) can be, and desirably is, styrene or a substituted styrene such as vinyl toluene (paragraph [0038]). Given these preferred embodiments, Dungworth suggests a stabilizer polymer formed from acrylic acid (as the acid based monomer) and vinyl toluene (as the vinyl aromatic monomer), meeting limitations of the emulsion polymer of instant claim 1. Further still, other monomers such as methyl methacrylate and butyl acrylate may be included (paragraph [0047]). It would have been prima facie obvious to the skilled artisan to apply these various teachings of Dungworth, thereby also rendering obvious a stabilizer polymer comprising an acrylic acid, vinyl toluene, methyl methacrylate, and butyl acrylate. The emulsion polymer system of Dungworth comprising that stabilizer polymer is directed to the claimed emulsion polymer.
The core polymer may comprise vinyl aromatic monomer and alkyl ester of acrylic or alkyl acrylic acid (paragraph [0061]). The alkyl ester of acrylic or alkyl acrylic acid monomer may be selected from alkyl esters of acrylic acid or alkyl esters of methacrylic acid (paragraph [0063]). Suitable alkyl esters of acrylic and methacrylic acid include methyl methacrylate and butyl acrylate (paragraph [0064]). Most preferably, the core polymer is selected from copolymers of an acrylate and a styrene (paragraph [0086]). Said acrylate is selected from a list that includes butyl acrylate, acrylic acid, and methyl methacrylate, or combinations thereof (paragraph [0086]). Therefore, Dungworth suggests a combination of butyl acrylate, acrylic acid, and methyl methacrylate in their core polymer. The emulsion polymer system of Dungworth that comprises that core polymer meets limitations of the claimed emulsion polymer.
Given these various embodiments for the stabilizer polymer and the core polymer of the emulsion polymer system, then Dungworth renders obvious an emulsion polymer system which comprises methyl methacrylate, butyl acrylate, acrylic acid, and vinyl toluene, directed to the claimed emulsion polymer.
Additionally, the emulsion polymer composition of Dungworth may also comprise water (paragraph [0176]). Also, the emulsion polymer system is designed to be diluted with water to form the corresponding use formulations (paragraph [0177]). Therefore, Dungworth discloses a formulation comprising their emulsion polymer system and water, meeting limitations of the claimed invention.
Furthermore, the emulsion polymer system optionally comprises an agrochemical active (paragraph [0015]). Agrochemical actives refer to biocides which, in the context of the Dungworth invention, are plant protection agents (paragraph [0124]). Agrochemical actives include biopesticides which may be selected from bacteria, where such biopesticides are capable of killing undesired living organisms (paragraph [0125]). Also, biocides for use in agrochemical formulations of the Dungworth invention include pesticides including fungicides and insecticides (paragraphs [0126]-[0127]). A pesticide may be a biological agent, such as bacteria, used against pests including insects and plant pathogens (paragraph [0130]). Through the inclusion of a biopesticide/pesticide in the emulsion polymer system, then the formulation of Dungworth is directed to a ‘pest control composition’ as instantly claimed.
In sum, Dungworth meets limitations of the claimed invention by rendering obvious a pest control composition comprising:
an emulsion polymer comprising methyl methacrylate, butyl acrylate, acrylic acid, an vinyl toluene;
water;
and a biopesticide/pesticide (e.g. bacteria).
Dungworth differs from the claimed invention in that Dungworth does not expressly disclose that their formulation comprises humic acid and Bacillus thuringiensis.
Moar discloses a novel Bacillus thuringiensis (Bt) strain having increased activity against plant pathogenic fungi, and retains insecticidal activity against certain lepidopteran plant pests (column 2, lines 20-23). The strain is able to aggressively control fungal and insect attack (column 2, lines 34-35). The strain finds use as a seed treatment, and preferred methods of applying the strain or an agrochemical composition comprising the strain include seed coating application (column 2, lines 53-55 and 59-62).
Brower discloses formulations for controlling or suppressing bacterial or fungal plant pathogens, wherein the formulation may include at least one beneficial species of bacteria; and at least one nutrient useful to either the plant and the at least one beneficial microorganism (abstract; paragraphs [0020] and [0026]). The formulation may further include compounds that promote the efficacy of the formulation including, but not limited to, compounds that protect at least one component of the formulation from ultraviolet (UV) light, particularly protecting from the damaging effects of UV radiation (paragraphs [0022], [0025], and [0053]). The beneficial bacteria can be Bacillus thuringiensis (paragraphs [0027] and [0045]). The nutrient can be humic acid (paragraphs [0031] and [0075]). Example 2 of Brower teaches a formulation comprising Bacillus thuringiensis and 3.5% by weight humic acids (Tables 3 and 4).
Wang discloses a wettable powder comprising a strain of Bacillus thuringiensis for preventing and treating lepidoptera insects and vegetable pests (‘Use’ section of Machine Translation of Abstract). Preferably, the composition comprises 0.5-1 wt.% ultraviolet light protection agent (‘Technology Focus’ section of Machine Translation of Abstract). The ultraviolet light protection agent can be humic acid (‘Technology Focus’ section of Machine Translation of Abstract).
Before the effective filing date of the claimed invention, it would have been obvious to the person of ordinary skill in the art to substitute the biopesticide (e.g., bacteria) of the formulation rendered obvious by Dungworth with the Bacillus thuringiensis strain of Moar. It would have been an obvious matter of simple substitution of one biopesticide that is a bacteria effective against plant pathogens (as sought by Dungworth in paragraphs [0125] and [0130]) for another. Additionally, one of ordinary skill in the art would have been motivated to include the B. thuringiensis strain of Moar as the biopesticide in the formulation rendered obvious by Dungworth because Moar’s strain is a bacteria that has insecticidal activity against certain lepidopteran plant pests and increased activity against plant pathogenic fungi. There would have been a reasonable expectation of success in providing the B. thuringiensis strain of Moar in the formulation rendered obvious by Dungworth for preventing, destroying, repelling or mitigating a pest because Dungworth indicates that their emulsion polymer system can further include a biopesticide that is a bacteria, and because Moar teaches that their strain can be applied in a seed coating, which the formulation of Dungworth is directed to (abstract of Dungworth).
Further still, before the effective filing date of the claimed invention, it would have been obvious to the person of ordinary skill in the art to further include humic acid in the formulation rendered obvious by Dungworth in view of Moar. One of ordinary skill in the art would have been motivated to do this because Dungworth teaches that their emulsion polymer composition may comprises at least one micronutrient or at least one macronutrient that promotes or improves plant growth (paragraphs [0146], [0147], and [0153]). As indicated in Brower, humic acid is a nutrient useful to either the plant and at least one beneficial microorganism (e.g., Bacillus thuringiensis), thus being suitable as a nutrient for inclusion in the formulation rendered obvious by Dungworth and Moar that comprises B. thuringiensis as a biopesticide for a seed coating. Additionally, one of ordinary skill in the art would have been motivated to include humic acid in the formulation rendered obvious by Dungworth in view of Moar because humic acid is recognized (specifically in Brower) for inclusion with a beneficial species of bacteria, such as Bacillus thuringiensis, in a formulation for controlling or suppressing bacterial or fungal plant pathogens, wherein the nutrient is useful to either the plant and the beneficial microorganism. Also, one of ordinary skill in the art would have been motivated to include humic acid in the formulation rendered obvious by Dungworth in view of Moar because a UV light protecting compound would have been desirable for inclusion in a formulation for controlling or suppressing plant pathogens that comprises beneficial bacteria (e.g. B. thuringiensis) since it promotes the efficacy of the formulation, based on Brower; humic acid is directed to a UV light protecting compound based on Wang; and the combination of humic acid and a B. thuringiensis for preventing and treating lepidoptera insects and vegetable pests is recognized in Wang. There would have been a reasonable expectation of success in including humic acid in the formulation rendered obvious by Dungworth in view of Moar because Dungworth teaches that their formulation can further comprise a micronutrient/macronutrient (which humic acid is directed to based on Brower).
Therefore, Dungworth in view of Moar, Brower, and Wang renders obvious instant claim 1.
Regarding instant claim 2, Brower teaches that the nutrients included in their formulation for controlling or suppressing bacterial or fungal plant pathogens can be added in amounts ranging between about 1 wt% and 15 wt% based upon the total weight of the formulation (paragraph [0075]). As pointed out above, the nutrient of Brower can be humic acid. Thus Brower teaches a formulation comprising between about 1 wt% and 15 wt% humic acid based on the total weight of the formulation, which overlaps with the range of instant claim 2. Additionally, Wang teaches that preferably, their B. thuringiensis-containing composition comprises 0.5-1 wt.% ultraviolet light protection agent, wherein the ultraviolet light protection agent can be humic acid (‘Technology Focus’ section of Machine Translation of Abstract). That range is fully encompassed by the range of instant claim 2. It would have been obvious to apply those concentrations of humic acid to the formulation rendered obvious by Dungworth, Moar, Brower, and Wang, for the same reasons for including humic acid in the formulation rendered obvious by Dungworth in view of Moar set forth above. Therefore, instant claim 2 is rendered obvious.
Regarding instant claim 3, Dungworth teaches that their emulsion polymer composition will typically be diluted to form the coating formulations, and the dilution may be with from 1 to 10,000, particularly 10 to 1,000, times the total weight of the emulsion polymer composition of water to form the coating formulation (paragraph [0180]). Claim 11 of Dungworth recites a diluted emulsion polymer system comprising in the range from 0.001 to 10 wt.% in total of the core-stabilizer copolymers. This range overlaps the claimed range. Therefore, instant claim 3 is rendered obvious.
Regarding instant claim 4, Dungworth discloses that the amount of acrylic acid monomer present in the stabilizer polymer may be in the range of 10 wt.% to 70 wt.% (paragraph [0054]). Moreover, the ratio of stabilizer polymer to core polymers in the emulsion polymer system of Dungworth may be 50:50 (paragraph [0104]). From that ratio, then the emulsion polymer system comprise 5 wt.% to 35 wt.% acrylic acid, which overlaps the range of instant claim 4. Therefore, instant claim 4 is rendered obvious.
Regarding instant claim 5, Dungworth teaches that the polymer particles of their emulsion polymer may have a D(v,0.9) value in the range from 1,000 nm to 20 nm (i.e., 20 nm to 1,000 nm), preferably in the range from 500 nm to 30 nm (i.e., 30 nm to 500 nm), more preferably in the range from 400 nm to 40 nm (i.e., 40 nm to 400 nm), most preferably in the range from 200 nm to 50 nm (i.e., 50 nm to 200 nm) (paragraph [0114]). These ranges overlap or are fully encompassed by the claimed range for average particle diameter. The D(v,0.9) value is a median volume particle diameter value (paragraph [0112]), and the D(v,0.9) values were determined by dynamic light scattering analysis in which an average of three runs was used to determine a final particle size (paragraph [0113]). Therefore, the D(v,0.9) value is directed to an average particle diameter measured using Dynamic Light Scattering. As such, instant claim 5 is rendered obvious.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUSAN EMILY FERNANDEZ whose telephone number is (571)272-3444. The examiner can normally be reached 10:30am - 7pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Melenie Gordon can be reached at 571-272-8037. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
Sef
/SUSAN E. FERNANDEZ/ Examiner, Art Unit 1651
Prosecution Insights