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 .
Claim Status
Claims 1-12 are currently pending.
Claims 1-12 are being examined on the merits.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
This application is a 371 of PCT/EP2022063092 (05/13/2022) as reflected in the filing receipt issued November 13, 2024.
Information Disclosure Statement
The Information Disclosure Statement(s) submitted on November 13, 2024, is being considered by the Examiner.
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 2 and 4 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.
A broad range or limitation together with a narrow range or limitation that falls
within the broad range or limitation (in the same claim) may be considered indefinite if
the resulting claim does not clearly set forth the metes and bounds of the patent
protection desired. See MPEP § 2173.05(c). In the present instance, claim 2 recites
the broad recitation “from 20 to 60% by weight“ and the claim also recites “preferably from 30 to 50% by weight”, which is the narrower statement of the range/limitation. The claim(s)are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
A broad range or limitation together with a narrow range or limitation that falls
within the broad range or limitation (in the same claim) may be considered indefinite if
the resulting claim does not clearly set forth the metes and bounds of the patent
protection desired. See MPEP § 2173.05(c). In the present instance, claim 4 recites
the broad recitation “from 1 to 30% by weight“ and the claim also recites “preferably from 1 to 20% by weight”, which is the narrower statement of the range/limitation. The claim(s)are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
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.
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 1-12 are rejected under 35 U.S.C 103 as being unpatentable over Sun et al ( CN106614642A; Published on May 10, 2017; Filed on November 02, 2015) in view of Nguyen-Kim et al (US20160074517A1; Published on March 17,2016).
Sun et al throughout teaches a composition for the treatment of seeds and crops.
For claim 1 : Sun teaches components of the composition are 1 percent of methyl thiadiazole induced amine, 50 percent of fludioxonil, 3 percent of alkylphenol polyoxyethylene phosphate, 5 percent of polyoxyethylene polyoxypropylene ether block copolymer, 4 percent of ethylene glycol,… and water, which is complemented to 100 percent (Sun example 1 paragraph 0066 of machine translation).
For claim 2: Sun exemplifies that the composition comprises of 50 percent of fludioxonil (Sun example 1 paragraph 0066 of machine translation)
For claim 4: Sun teaches 5 percent of polyoxyethylene polyoxypropylene ether block copolymer (reads on the polyoxyalkylene copolymer of the claim).
For claim 5: Sun exemplifies the composition includes polyoxyethylene polyoxypropylene ether block copolymer (reads on the polyethyleneoxide-polypropyleneoxide-polyethyloxide block copolymer of the claim) (Sun example 1, paragraph 0066 of machine translation).
For claim 10: Sun teaches that active ingredients are selected pesticides and the bactericides mixed for use, so that farmers can control various plant diseases and insect pests (Sun paragraph 0008 of machine translation). Sun further discloses that the composition has beneficial effects that are suitable for various crop seeds, including grain crops and economic crops such as such as sugarcane, corn, rice, rape… and the like (Sun paragraph 0007 of machine translation).
For claim 11: Sun discloses that the composition has beneficial effects that are suitable for various crop seeds, including grain crops and economic crops such as such as sugarcane, corn, rice, rape( reads on the plant oilseed rape of the claim)… and the like (Sun paragraph 0007 of machine translation).
For claim 12: Sun teaches that fludioxonil belongs to a non-systemic broad-spectrum bactericide and inhibits the growth of fungal mycelia (Sun paragraph 0008 of machine translation )
Sun does not teach that the composition includes two polyoxyalkylene copolymer types with molecular weights of up to 4000g/mol or superior to 4000 g/mol, as recited in claims 1 and 3, 7. Sun also does not teach the weight percent of the dispersing agent, that the dispersing agent is a poly(ethylene oxide)- poly(propylene oxide)-poly(ethylene oxide) block copolymer, or that the composition is a suspension concentrate or suspoemulsion, as recited in claims 6, 8, and 9.
However, Nguyen-Kim et al throughout teaches a aqueous active fungicidal formulation.
For claim 1 and 7: Nguyen-Kim exemplifies a composition fluxapyroxad in a 5% strength by weight aqueous solution of PE 10400 (reads on polyoxyalkylene copolymer dispersing agent with molecular weight of more than 4000g/mol of the claim), PE 4300 or PE6200 (reads on polyoxyalkylene copolymer with molecular weight of up to 4000g/mol of the claim), and water ( Nguyen-Kim page 3 column 1 paragraph 0072-77,and column 2 paragraph 0078).
For claim 3: Nguyen-Kim exemplifies a composition with PE6200 (B) (reads on polyoxyalkylene copolymer with molecular weight up to 3000 g/mol of the claim).
For claim 6 : Nguyen-Kim exemplifies PE10400 (reads on dispersing agent) is present at 5% by weight of the composition ( Nguyen-Kim page 3,Table III, column 1).
For claim 7: Nguyen-Kim exemplifies PE10400 ( reads on dispersing agent) is present at 5% by weight of the composition ( Nguyen-Kim page 3,Table III, column 1).
For claim 8: Nguyen-Kim teaches triblock copolymers of the block structure A-B-A, where A is ethylene oxide units (EO) and b is propylene oxide units PO. As component A, of the block structure (A) (EO)x1′-(PO)y1-(EO)x1 (reads on the polyethylene oxide-polypropylene oxide-polyethylene oxide block copolymer of the claim) (page 1 paragraph 0028). Nguyen-Kim further discloses that component A is PE10400 ( page 2 paragraph 0035).
For claim 9: Nguyen-Kim teaches that Components A and B, disclosed as PE10400 and PE4300 or PE6200, in the amounts stated below in each case and also 2% of the weight of active ingredient were dissolved in water (Nguyen-Kim paragraph 0057). Further discloses that conventional auxiliaries such as surfactants, stabilizers, antioxidants, biocides, defoamers or dyes and are acceptable for the particular application can be added, which are well known ingredients for preparing suspension concentrate (Nguyen-Kim paragraph 0053).
With regards to the two polyoxyalkylene copolymer types with molecular weights of up to 4000g/mol or superior to 4000 g/mol (claims 1, 3, and 7), Nguyen-Kim exemplifies aqueous solution of PE 10400 (which has molecular weight of more than 4000g/mol), PE 4300 or PE6200 (molecular weight of up to 4000g/mol) ,as discussed above. Sun discloses that the composition includes polyoxyethylene polyoxypropylene ether block copolymer, as discussed above. One of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant invention to incorporate the teachings of two polyoxyalkylene copolymers taught by Nguygen-Kim with the polyoxyalkylene copolymer composition, taught by Sun for pesticidal use. One of ordinary skill in the art would have been motivated to do so because inclusion of multiple polyoxyalkylene copolymers are known to be used in compositions for pesticidal use and methods such as those disclosed by Sun.
With regards to the weight percent of the dispersing agent and that the dispersing agent is a poly(ethylene oxide)- poly(propylene oxide)-poly(ethylene oxide) block copolymer and a suspension concentrate (claims 6, 8, and 9), Sun exemplifies the composition includes polyoxyethylene polyoxypropylene ether block copolymer, where components are mixed with water and other additives, as discussed above. Nguyen-Kim exemplifies PE10400 (reads on dispersing agent) is present at 5% by weight of the composition where triblock copolymers of the block structure of (EO)x1′-(PO)y1-(EO)x1, dissolved in water with other suitable auxiliaries, as discussed above. One of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant invention to combine the teachings of Sun and Nguyen-Kim to incorporate a polyoxyalkylene copolymer taught by Sun that is a dispersing agent in the desired amount as taught by Nguyen-Kim. One of ordinary skill in the art would have been motivated to do so for achieving a pesticidal composition that prevents active components from settling or separating the mixture. One of ordinary skill in the art would have had a reasonable expectation of success in doing so because both references teach triblock copolymer composition for pesticidal use.
A person of ordinary skill in the art would have reasonable expectation of
success of achieving such modifications since Sun reference demonstrates a pesticidal composition comprising varies active ingredients, which are routine and known in the art.
Conclusion
Claims 1-12 are rejected. No claim is allowed.
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/J.A.E./Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616
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