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 .
DETAILED ACTION
The preliminary amendment filed 12/11/2025, cancelled claims 5-8, 10-13, 17, 19, 22-24, and 27.
Claims 1-4, 9, 14-16, 18, 20-21, 25-26 and 28-34 are pending and examined on the merits herein.
NOTE: Claims 28-34 are labeled as “(Previously Presented).” However these claims are new and therefore should be labeled “(New).” Claims 28-34 are interpreted as “New.”
Priority
This application claims the following priority:
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Claim Objections
Claims 3-4, 20 and 31 are objected to because of the following informalities:
-In claim 3, line 2, the term “ethoxytlate” is misspelled and should be replaced with –ethoxylate- -.
-In claim 4, line 2, the space between the terms “ethyl” and “eneoxide” should be deleted. The term should read “ethyleneoxide.”
-In claim 4, line 2, the space between the terms “propyleneoxi” and “de” should be deleted. The term should read “proplyeleneoxide.”
-In claim 20, part “c),” the space between the terms “ethyl” and “eneoxide” should be deleted. The term should read “ethyleneoxide.”
-In claim 31, line 3, the “%” sign is missing following ”30 wt.” The claim should be amended to recite “30 wt%.”
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 3 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.
-In claim 3, it is not clear of “linear or branched” in line 2 only applies to “C8-C10 alcohol ethoxylate” or if it refers to every member of the Markush group.
-In claim 3, line 3, the structure of a “COCH alcohol ethoxylate” is unclear. It is not clear what position “COCH” occupies in the alcohol ethoxylate and what two group the “C” in the “CH” is attached to and which group the “C” in the “CO” is attached to.
In view of compact prosecution, for the purpose of applying prior art, “linear or branched” is interpreted as applying to every member of the Markush group.
-In claim 4, part “(b),” the parenthetical recitations “(e.g. lauryl sulfonate),” “(N-methyl oleyl taurate),” and “(cocoyl isethionate),” render the claim indefinite. It is not clear if these recitations are further limitations of fatty acid sulfonate, taurate, and isethionate, respectively, or if they are merely exemplary of fatty acid sulfonate, taurate, and isethionate.
In view of compact prosecution, for the purpose of applying prior art, these parenthetic recitations are interpreted as merely exemplary of fatty acid sulfonate, taurate, and isethionate.
Claim Rejections - 35 USC § 102
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.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 4, 9, 14-16, 18, 25-26, 28-29, and 31-34 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by IN201821023083 (published 2019, IDS of 12/26/2024).
Regarding claims 1, 4, 9, 14-16, 18, 28, 29, 31, ‘083 teaches a suspension concentrate comprising 4% afidopyropen (additional insecticide), 20% diafenthiuron (additional insecticide), 7.5% spiromesifen (ketoenol insecticide), 2% ethoxylated fatty alcohol (adjuvant), 3% acrylic graft copolymer (steric stabilizer), 0.5% alkylated naphthalene sulfonate sodium salt (static stabilizer, alkyl aryl sulfonate), silicone antifoam (defoamer additive), 1,2-benzisothiazoline-3-one, mono-ethylene glycol, 0.2% xanthan powder, i.e. xanthan gum( rheomodifier), DM water (57.6%) (pgs. 22-23, 28, 7).
Regarding claims 25-26, ‘083 teaches a method of using its suspension to manage or control insect pests in crops by mixing the suspension in soil (pg. 36, claims 6-7; pg. 14, lines 19-27).
Further regarding claim 31, the ratio of 2%ethoxylated fatty alcohol (adjuvant) to 3% acrylic graft copolymer (steric stabilizer) and 0.5% alkylated naphthalene sulfonate sodium salt (static stabilizer) is present at a ratio between about 1:5 and about 5:1.
Regarding claim 32, water is an agriculturally acceptable liquid carrier.
Claim 33 is interpreted as if the rheomodifier is a cellulose ether, then the cellulose ether is any one of the compounds recited in claim 33. Since the rheomodifier is xanthan gum and not cellulose ether, this limitation is met.
Claim 34 is interpreted as if the steric stabilizer is a fatty acid sulfonate, N-methyl oleyl taurate, and/or isethionate, then the steric stabilizer is any one of the compounds recited in claim 34. Since the steric stabilizer is acrylic graft copolymer and not fatty acid sulfonate, taurate, and/or isethionate, this limitation is met.
Claims 1, 4, 14, 16, 18, 25-26, and 28-34 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by CN11006336 (published 2019, IDS of 12/26/2024 (Original) and PTO-892 (Translation)).
Regarding claims 1, 4, 14, 16, 18, 28-30, ‘336 teaches a suspension pesticide comprising 15% spirotetramat (ketoenol insecticide), 15% thiamethoxam (additional insecticide), 3% sodium lignosulfonate (static stabilizer), 3% fatty alcohol polyoxyethylene ether (adjuvant), 0.2% xanthan gum (rheomodifier), 0.2% silicone antifoaming agent (additive), 63.6% water (Translation, pg. 10, Comparative Example 5).
‘336 teaches its suspensions as diluted with water prior to its use, thereby meeting the limitation of “concentrate form” (Translation, pgs. 10-11, Test Example 1).
Regarding claims 25-26, ‘336 teaches its suspensions for use as pesticides for controlling pests in crop fields, and specifically teaches its examples as tested in citrus planting fields by spraying the pesticides in planting areas, i.e., applying onto the plant and/or soil to control locusts and mites (Translations, pgs. 2, 10-11, Claims 8-10, Test Example 1).
Further regarding claim 31, the ratio of 3% fatty alcohol polyoxyethyelene ether (adjuvant) to 3% sodium linosulfonate (static stabilizer) is present at a ratio between about 1:5 and about 5:1.
Regarding claim 32, water is an agriculturally acceptable liquid carrier.
Claim 33 is interpreted as if the rheomodifier is a cellulose ether, then the cellulose ether is any one of the compounds recited in claim 33. Since the rheomodifier is xanthan gum and not cellulose ether, this limitation is met.
Claim 34 is interpreted as if the steric stabilizer is a fatty acid sulfonate, N-methyl oleyl taurate, and/or isethionate, then the steric stabilizer is any one of the compounds recited in claim 34. Since the steric stabilizer is sodium lignosulfonate and not fatty acid sulfonate, taurate, and/or isethionate, this limitation is met.
Claim Rejections - 35 USC § 103
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.
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, 4, 9, 14-16, 18, 25-26, and 28-34 are rejected under 35 U.S.C. 103 as being unpatentable over IN201821023083 (published 2019, IDS of 12/26/2024).
Claims 1-4, 9, 14-16, 18, 20-21, 25-26, 28-29, and 31-34 are rejected under 35 U.S.C. 103 as being unpatentable over IN201821023083 (published 2019, IDS of 12/26/2024) in view of Croda (Crop Care Product Guide, published 2020, PTO-892).
IN201821023083 is applied to claims 1, 4, 9, 14-16, 18, 25-26, 28-29 and 31-34 as discussed above, and incorporated herein.
Regarding claims 2-3, the suspension concentration of‘083 differs in that it does not teach the chain length of the ethoxylated fatty alcohol, i.e., fatty alcohol alkoxylate.
Croda teaches agricultural adjuvants for crop care (pg. 3). Croda teaches C8-15 alcohol ethoxylates as nonionic surfactants for use in agricultural formulations (pgs. 5-6).
It would have been prima facie obvious to one of ordinary skill in the art, prior to the effective filing date of the instantly claimed invention, to select C8-C15 alcohol ethoxylates as the ethoxylated fatty alcohols of ‘083, to arrive at claims 2-3. One of ordinary skill in the art would have been motivated to make such selection, with a reasonable expectation of success, because:
-‘083 teaches its suspension concentrates as comprising ethoxylated fatty alcohol, and
-Croda teaches C8-C15 ethoxylated fatty alcohols as adjuvants for use in agricultural formulations.
As such, an ordinary skilled artisan would have been motivated to make such a selection, to predictably arrive at a formulation that is stable and maximally effective for use as a pesticide to control locusts and mites.
Regarding claims 20 and 21, the suspension concentrate of the combination of ‘083 and Croda differs in that it does not teach spirotetramat.
‘083 teaches that its composition can comprise spiromesifen or spirotetramat in combination with afidopyropen and diafenthiuron (pgs. 10-11; pg. 34-35, claims 1-2).
It would have been prima facie obvious to one of ordinary skill in the art, prior to the effective filing date of the instantly claimed invention, to substitute the spiromesifen in the suspension concentration of the combination of‘083 and Croda, with spirotetramat, to arrive at instant claims 20-21. One of ordinary skill in the art would have been motivated to make such a substitution, with a reasonable expectation of success, because:
-‘083 teaches spirotetramat as an alternative for spiromesifen, and
-substituting equivalents known for the same purpose is prima facie obvious, see MPEP 2144.06.
As such, an ordinary skilled artisan would have been motivated to make such a substitution, to predictably arrive at a functionally similar suspension concentrate for use as a pesticide to control locusts and mites.
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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LAUREN WELLS whose telephone number is (571)272-7316. The examiner can normally be reached M-F 7:00-4:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, James (Jim) Alstrum-Acevedo can be reached on 571-272-5548. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LAUREN WELLS/Primary Examiner, Art Unit 1622
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