DETAILED ACTION
Status of the Application
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 18, 21, and 24 are withdrawn.
Claims 1-15 and 30-31 are pending and represent all claims currently under consideration.
Priority
This application is a 371 of PCT/US2023/021883, which claims priority to PRO 63/341,649.
Claims 1-15 and 30-31 are considered to have an effective filing date of 05/13/2022.
Election/Restrictions
Applicant’s election without traverse of Group I in the reply filed on 09/08/2026 is acknowledged.
Claims 18, 21, and 24 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 09/08/2026.
Information Disclosure Statement
The information disclosure statement filed 04/19/2025 has been considered.
Claim Objections
Claims 1-2, 10, and 13-15 are objected to because of the following informalities. Appropriate correction is required.
Regarding claim 1, “in form” should read “in a form”.
Regarding claim 2, “weight, constituent” should read “weight, and constituent”.
Regarding claim 10, “the form of” should read “a form of”.
Regarding claims 13-15, “comprising as constituent” should read “comprising as a constituent”.
Specification
The use of the terms BASF, Dow, Croda, Solvay, Evonik, Borregaard, Ingevity, Nouryon, Stepan, Sigma Aldrich, Syngenta, Bayer, Malvern, Zetasizer, Geropon, Teejet, Mastersizer, Hobart, Kitchen Aid, which are trade names or marks used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
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 6-7, 9-10, and 30 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 claim 6, the claim recites the limitation "the same phase". There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 7, the claim recites the limitation "the melting point of the composition". There is insufficient antecedent basis for this limitation in the claim.
Regarding claims 9-10, the recitation of “an amount of at least about 5 times the weight of the composition” is unclear, because the amount appears to be referring to the amount of composition added to water. For the purpose of examination of the prior art, the Examiner has interpreted the claims to read “upon adding the composition to water having a pH of about 7 at 25°C and 1013 mbar, wherein the water is present in an amount of at least about 5 times the weight of the composition”.
Regarding claim 10, the recitation of “an amount of at least about 5 times the weight of the composition” is unclear, because the amount appears to be referring to the amount of composition added to the solution of one or more emulsifying surfactants in water. For the purpose of examination of the prior art, the Examiner has interpreted the claims to read “upon adding the composition to water having a pH of about 7 at 25°C and 1013 mbar, wherein the solution of one or more emulsifying surfactants in water is present in an amount of at least about 5 times the weight of the composition”.
Regarding claim 30, the phrase "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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.
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.
Claims 1-15 and 30-31 are rejected under 35 U.S.C. 103 as being unpatentable over Richardson (WO 2014093522 A1; IDS reference, 04/19/2025), as evidenced by BASF (Pluronic F127) and PubChem (Fluopyram). Richardson was cited previously by the Examiner.
Regarding claim 1, Richardson teaches pesticide granules (i.e., a composition in solid form) comprising about 10 wt% of alpha cypermethrin and 20 wt% of dinotefuran (i.e., about 30 wt% of at least one pesticidal active ingredient “a”), about 60 wt% of urea (i.e., “b”), and about 10 wt% of a non-ionic surfactant (i.e., “c”; Richardson, pages 28-29, paragraphs 0074-0076, example 2), which each lie within the claimed ranges of the % by weight and results in a ratio of “c” to “a” of about 0.33. Richardson teaches examples of pesticides to include fluopyram (i.e., an acceptable pesticidal active ingredient as defined by the instant specification, page 15, paragraph 0087; Richardson, page 8, 2nd paragraph), alpha cypermethrin (Richardson, page 15, last paragraph), and dinotefuran (Richardson, page 16, 3rd paragraph). It is prima facie obvious to substitute equivalents taught by the prior art to be useful for the same purpose. See MPEP 2144.06(I). Therefore, it would have been obvious to one of ordinary skill in the art to have substituted the pesticides alpha cypermethrin and dinotefuran for fluopyram in the same amount, resulting in a composition as claimed.
Richardson is considered to be analogous to the claimed invention, because both Richardson and the instant invention are in the same field of solid pesticidal compositions. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have arrived at the claimed invention based on the teachings of Richardson under the meaning of 35 U.S.C. 103.
Regarding claim 2, Richardson teaches all the elements of the current invention as applied to claim 1. As above, Richardson teaches pesticide granules (i.e., a composition in solid form) comprising about 10 wt% of alpha cypermethrin and 20 wt% of dinotefuran (i.e., about 30 wt% of at least one pesticidal active ingredient “a”), and about 60 wt% of urea (i.e., “b”), which each lie within the claimed ranges. As above, Richardson teaches examples of pesticides to include fluopyram (i.e., an acceptable pesticidal active ingredient as defined by the instant specification, page 15, paragraph 0087; Richardson, page 8, 2nd paragraph), alpha cypermethrin (Richardson, page 15, last paragraph), and dinotefuran (Richardson, page 16, 3rd paragraph). It is prima facie obvious to substitute equivalents taught by the prior art to be useful for the same purpose. See MPEP 2144.06(I). Therefore, it would have been obvious to one of ordinary skill in the art to have substituted the pesticides alpha cypermethrin and dinotefuran for fluopyram in the same amount, resulting in a composition as claimed.
Regarding claim 3, Richardson teaches all the elements of the current invention as applied to claim 1. As above, Richardson teaches pesticide granules (i.e., a composition in solid form) comprising about 10 wt% of alpha cypermethrin and 20 wt% of dinotefuran (i.e., about 30 wt% of at least one pesticidal active ingredient “a”), and about 10 wt% of a non-ionic surfactant (i.e., “c”; Richardson, pages 28-29, paragraphs 0074-0076, example 2), which results in a ratio of “c” to “a” of about 0.33 and lies within the claimed range. Richardson teaches examples of pesticides to include fluopyram (i.e., an acceptable pesticidal active ingredient as defined by the instant specification, page 15, paragraph 0087; Richardson, page 8, 2nd paragraph), alpha cypermethrin (Richardson, page 15, last paragraph), and dinotefuran (Richardson, page 16, 3rd paragraph). It is prima facie obvious to substitute equivalents taught by the prior art to be useful for the same purpose. See MPEP 2144.06(I). Therefore, it would have been obvious to one of ordinary skill in the art to have substituted the pesticides alpha cypermethrin and dinotefuran for fluopyram in the same amount, resulting in a composition as claimed.
Regarding claim 4, Richardson teaches all the elements of the current invention as applied to claim 3. As above, Richardson teaches pesticide granules (i.e., a composition in solid form) comprising about 10 wt% of alpha cypermethrin and 20 wt% of dinotefuran (i.e., about 30 wt% of at least one pesticidal active ingredient “a”), and about 10 wt% of a non-ionic surfactant (i.e., “c”; Richardson, pages 28-29, paragraphs 0074-0076, example 2), which results in a ratio of “c” to “a” of about 0.33 and lies within the claimed range. Richardson teaches examples of pesticides to include fluopyram (i.e., an acceptable pesticidal active ingredient as defined by the instant specification, page 15, paragraph 0087; Richardson, page 8, 2nd paragraph), alpha cypermethrin (Richardson, page 15, last paragraph), and dinotefuran (Richardson, page 16, 3rd paragraph). It is prima facie obvious to substitute equivalents taught by the prior art to be useful for the same purpose. See MPEP 2144.06(I). Therefore, it would have been obvious to one of ordinary skill in the art to have substituted the pesticides alpha cypermethrin and dinotefuran for fluopyram in the same amount, resulting in a composition as claimed.
Regarding claim 5, Richardson teaches all the elements of the current invention as applied to claim 1. As above, Richardson teaches examples of pesticides to include fluopyram (i.e., an acceptable pesticidal active ingredient as defined by the instant specification, page 15, paragraph 0087; Richardson, page 8, 2nd paragraph).
Regarding claim 6, Richardson teaches all the elements of the current invention as applied to claim 1. Richardson teaches the surfactant and pesticide active is mixed to provide a substantially homogenous mixture (Richardson, page 28, paragraph 0075, example 2), suggesting the two constituents are in the same phase as claimed.
Regarding claim 7, Richardson teaches all the elements of the current invention as applied to claim 1. Richardson does not measure a depression of a melting point of the composition. However, the U.S. Patent Office is not equipped with analytical instruments to test prior art compositions for the infinite number of ways that a subsequent applicant may present previously unmeasured characteristics. When as here, the prior art appears to contain the exact same ingredients and applicant's own disclosure supports the suitability of the prior art composition as the inventive composition component, the burden is properly shifted to applicant to show otherwise.
Regarding claim 8, Richardson teaches all the elements of the current invention as applied to claim 1. Richardson teaches extruded pesticide granules result in the dissolution of urea within the formulation (Richardson, page 4, paragraph 0015), suggesting the solid composition is a solid solution.
Regarding claim 9, Richardson teaches all the elements of the current invention as applied to claim 1. “Upon adding the composition to water having a pH of about 7 at 25°C and 1013 mbar in an amount of at least about 5 times the weight of the composition” is a recitation of intended use. Patentability of apparatus or composition claims depends on the claimed structure, not on the use or purpose of that structure. See MPEP § 2111.02. In the instant case, Richardson teaches the solid composition as claimed, and would therefore be expected to form nanoparticles upon addition to water as claimed. Richardson further teaches the pesticide forms particle sizes of below 1 micrometer (i.e., nanoparticles) when introduced into water (Richardson, page 25, paragraph 0060). While Richardson does not specify a pH, temperature, or pressure, it would be reasonable for one of ordinary skill in the art to expect water as taught by Richardson to comprise water of a neutral pH (i.e., pH of about 7) and at standard temperature and pressure (i.e., 25°C and 1013 mbar) as claimed.
Regarding claim 10, Richardson teaches all the elements of the current invention as applied to claim 1. “Upon adding the composition to water having a pH of about 7 at 25°C and 1013 mbar in an amount of at least about 5 times the weight of the composition” and “upon adding the composition to a 1% by weight solution of one or more emulsifying surfactants in water having a pH of about 7 at 25°C and 1013 mbar in an amount of at least about 5 times the weight of the composition” are recitations of intended use. Patentability of apparatus or composition claims depends on the claimed structure, not on the use or purpose of that structure. See MPEP § 2111.02. In the instant case, Richardson teaches the solid composition as claimed, and would therefore be expected to form a liquid solution as claimed.
Regarding claim 11, Richardson teaches all the elements of the current invention as applied to claim 1. Richardson teaches a particularly preferred non-ionic surfactant is Pluronic F127 from BASF (Richardson, page 18, paragraph 0033). As evidenced by BASF, Pluronic® F127 has an HLB of 22 (BASF, page 9), which lies within the claimed range.
Regarding claim 12, Richardson teaches all the elements of the current invention as applied to claim 1. Richardson teaches the non-ionic surfactant is desirably a polyalkoxylate polymer such as an alkoxylated alcohol (i.e., a polyalkoxylated alcohol; Richardson, page 17, paragraph 0028).
Regarding claim 13, Richardson teaches all the elements of the current invention as applied to claim 1. Richardson teaches suitable surfactants to include nonionic surfactants and polyelectrolytes (i.e., polymeric surfactants “d” which different from the non-ionic surfactants “c”), and teaches such surfactants can be used as dispersants (Richardson, page 21, paragraph 0044).
Regarding claim 14, Richardson teaches all the elements of the current invention as applied to claim 1. Richardson teaches suitable surfactants to include nonionic surfactants, polyelectrolytes (i.e., polymeric surfactants “d” which different from the non-ionic surfactants “c”), and wetters (i.e., “e” which is different from “c” and “d”; Richardson, page 21, paragraph 0044).
Regarding claim 15, Richardson teaches all the elements of the current invention as applied to claim 1. Richardson teaches solid carriers such as methylcellulose (Richardson, page 19, paragraph 0036), which is a suitable water-soluble polymeric binder as defined by the instant specification (page 25, paragraph 0156).
Regarding claim 30, Richardson teaches all the elements of the current invention as applied to claim 1. As above, Richardson teaches examples of pesticides to include fluopyram (Richardson, page 8, 2nd paragraph). As evidenced by PubChem, fluopyram has a molecular weight of about 397 g/mol (i.e., 397 Daltons), which lies within the claimed range.
Regarding claim 31, Richardson teaches all the elements of the current invention as applied to claim 1. As above, Richardson teaches about 10 wt% of a non-ionic surfactant (i.e., “c”; Richardson, pages 28-29, paragraphs 0074-0076, example 2), which lies within the claimed range.
Conclusion
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/C.P.J./Examiner, Art Unit 1613
/JENNIFER A BERRIOS/ Primary Examiner, Art Unit 1613
