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 .
THIS IS A TRACK ONE APPLICATION.
Priority
The instant application, filed 03/25/2025 and having 1 RCE-type filing therein is a Divisional of 18492006 , filed 10/23/2023, now U.S. Patent # 12279621 and having 1 RCE-type filing therein.
Claim Status
Claims 1 and 6-8 are pending.
Claims 2-5 are cancelled.
Claims 1 and 6-8 are rejected.
Information Disclosure Statement
The Examiner has considered the reference(s) provided in the 3/13/26 Information Disclosure Statements, and provides a signed and dated copy of such herewith.
As previously stated, the listing of references in the specification, on pages 53-54, is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper.” Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
Claim Objections
Response to Arguments
Applicant’s arguments, see page 4, filed 3/13/26, and claim amendment, with respect to the objection to claim 6 have been fully considered and are persuasive. The objection to claim 6 has been withdrawn.
Claim Interpretation – Retained for the Record and Supplemented
The claims terms are given their broadest reasonable interpretation (“[T]he ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application.” Phillips v. AWH Corp., 75 USPQ2d 1321, 1326 (Fed. Cir. 2005) (en banc).) The broadest reasonable interpretation of the claims must also be consistent with the interpretation that those skilled in the art would reach.” MPEP 2111, with reference to In re Cortright, 49 USPQ2d 1464, 1468.
In claim 1, when R1 is hydrogen, this is interpreted to be one of the two hydrogens attached to the amino group of the N-terminus amino acid. When Y1 is absent, this hydrogen is interpreted to be one of the hydrogens of the N-terminus asparagine of Z’s SEQ ID NO:1. To interpret this in another way would conflict with the normal valency of N-terminus amino groups.
Also, MPEP 2103 states in part, “Language that suggests or makes optional but does not require steps to be performed or does not limit a claim to a particular structure does not limit the scope of a claim or claim limitation.” Further, MPEP 2111.04 states in part, “Claim scope is not limited by claim language that suggests or makes optional but does not require steps to be performed, or by claim language that does not limit a claim to a particular structure.”
Accordingly, the “optionally substituted” language of claim 2, and the “optionally” language of claims 3, 6 and 7 do not limit the scope of the respective claim or claim limitation.
Supplementing the above, considering the ordinary and customary approaches to formulaically indicate a C-terminus amidation, the examiner interprets the “[NH2]” of the claim 1 formula on line 5 to represent an amidated form of the C-terminus leucine, replacing the carbonyl -OH, thus forming at the C-terminus (-CONH2), an amidated form of this terminus. Any disagreement with this interpretation should be made of record with appropriate support for the applicant’s differing interpretation.
Per para 299 of the corresponding PGPUB No. 20250261651, “Adjuvants may enhance product performance, for example, by increasing the efficiency of the delivery of active ingredients, reducing the level of active ingredient required, or extending the spectrum of effectiveness.” A solvent, carrier or diluent that enhances product performance such as by increasing the efficiency of the delivery of active ingredient therefore also is an adjuvant.
Per para 320 of the corresponding PGPUB No. 20250261651, where it states, “The composition may comprise one or more synergists, i.e. compounds which increase the efficacy of insecticides against their targets, often by inhibiting an insect's ability to metabolise the active agent,” notwithstanding the second sentence, “Common synergists include piperonyl butoxide and MGK-264 (n-octyl bicycloheptane dicarboximide), or peptidase inhibitors,” a solvent, carrier or diluent which increases the efficacy of insecticides against their targets therefore also is a synergist.
As indicated above, the examiner interprets compound class terms such as adjuvants and synergists to be encompassed, depending on a particular fact or circumstance, by other class terms, such as carrier, diluent and solvent.
Response to Arguments
The Examiner has considered Applicant’s Claim Interpretation respectful disagreement, page 3, and does not disagree with that. The above includes a minor correction regarding the C-terminus amidation, reflecting correction of an inadvertent error in naming the moiety substituted with -NH2.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1 and 6-8 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 states in part, as to the agricultural composition, “wherein the dispersant is in an amount that increases spray retention, spreading, foliar uptake, and penetration enhancement of the insecticidal compound or improve stability of the insecticidal compound.”
Apart from generic listings that include the word dispersants, the specification on pages 43-44 states the following regarding dispersants:
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There is no support in the application as filed for claim 1’s stating that the dispersant, which per the above may be aqueous or non-aqueous, increases spray retention, spreading, foliar uptake, and penetration enhancement because the only reference to any formulation that achieves any one or more of these is for an oil dispersion (OD) formulation. There is no support for what is claimed “…increases spray retention, spreading, foliar uptake, and penetration enhancement” for an aqueous dispersant, nor any other dispersant-comprising system or formulation, such as in an oil-in-water emulsion formulation, see Stepan, Concentrated Emulsions fact sheet, 4 pages, 2022 (note that some block copolymers are stated to be used as emulsifier and dispersant). Nor is there explicit support for “increases spray retention” given that para 277 states, only for OD formulations, “better spray retention;” in this art field what is better spray retention may not necessarily always be an increase in spray retention.
With regard to dispersant improving stability of the insecticidal compound, the examiner only finds support for this for aqueous dispersants, see para 282, and here, this only states, “to improve stability in the spray tank after dilution in water.” Based on the ordinary and customary meaning of a dispersant, something that aids in dispersion, this para 282 phrase appears to be related to improving the stability of the suspension, solution or mixture in a tank that comprises one or more insecticidal compounds, and not to improving the stability of the insecticidal compound itself.
Additionally, the examiner does not find explicit nor inherent nor inferred support for the specific claim 1 limitation, “wherein the emulsifying agent is in an amount that emulsifies a continuous oil phase into water.”
From page 44:
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There is no reference in the latter claim 1 limitation to the limiting extent of the emulsifying - of an oil dispersion (OD) formulation when being diluted prior to being sprayed, so what is claimed extends beyond that for which there is support in the application as filed.
Claims depending from claim 1, claims 6-8, also are rejected based on the rejections of claim 1 under this section.
Claim Rejections - 35 USC § 101
Response to Arguments
Applicant's arguments filed 3/13/26 have been fully considered but they are not persuasive.
The examiner acknowledges the 3/13/26 amendments to claim 1, including adding four ‘wherein’ clauses for the one or more adjuvants, dispersants, emulsifying agents, and synergists. However, the amounts of the one or more adjuvants, preservatives, dispersants, emulsifying agents, or synergists to achieve such functions is/are not provided (such as by weight ratio, percentage, etc.), and it is the Examiner’s understanding based on current guidance that lacking this/these the 35 USC 101 rejection should be maintained.
While applicant on page 4 asserts “…claim 1 has been amended to describe the amount …”, this describing of amounts is in functional terms, which are not numerical amounts or percentages.
Claims 1 and 6-8 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a natural product without significantly more. The claim(s) recite(s) SEQ ID NO:1, the peptide [Hy-]NADEDQQQSVDFTPRL-[NH2].
This peptide is found in nature.
This rejection is based in part on the teachings of Lee and Boo, Peptides 26 (2005) 2404–2411 (“Lee”), where on page 2407 this sequence, NADEDQQQSVDFTPRL, is identified as β-NP, standing for beta-neuropeptide, one of several distinct neuropeptides identified by this reference. Lee teaches that for activity these peptides are amidated at the C-terminus, see Abstract on page 2404, last sentence on page 2404, and also page 2408.
This judicial exception is not integrated into a practical application because this natural compound is the same as specified in the claim 1 formula, and the additional components of the agricultural composition of claim 1 are not set forth with numerical amounts, ratios or percentages of components of the composition to achieve something markedly different from nature (including two natural products when one of the adjuvants is a natural product, see MPEP 2106.04(c), and also can include natural products, e.g., lecithin as an emulsifying agent.
Claims 6-8 also are directed to nature-based combination compositions, and their analyses follow.
The following sets forth the analyses of all claims:
Step 1: YES: Claim 1 is to an agricultural composition comprising an insecticidal compound in admixture with one or more adjuvants, preservatives, dispersants, emulsifying agents, or synergists, the insecticidal compound having the formula or a salt or solvate thereof: [Hy]-NADEDQQQSVDFTPRL-[NH2] (SEQ ID NO:2), wherein [Hy] represents one of the two hydrogens attached to the N-terminus nitrogen of the N-terminus asparagine.
Claim 6-8 also are to compositions of claim 1, so all claims are to one of the four statutory categories.
Step 2A Prong 1: YES: All agricultural composition claims 1 and 6-8 recite at least one natural product, the beta-neuropeptide. Please note also that the classes of admixtured components of claim 1 include nature-based products.
Agricultural composition claim 1 on its face recites the beta-neuropeptide natural product, albeit admixed with one or more other components of the composition, these now further amended with respective ‘wherein’ clauses for each of the adjuvant classes.
Composition claim 6 comprises the natural product of the claim 1 agricultural composition wherein the composition is an aqueous composition. Because an aqueous composition comprises water, this introduces another natural product mixed with the first natural product, the beta-neuropeptide.
Composition claim 7 further defines the claim 1 agricultural composition as either an insect control composition or a plant protection composition, which does not alter the fact that the claim, depending from claim 1, still recites the beta-neuropeptide natural product.
Composition claim 8, depending from claim 1, wherein the composition further comprises one or more solvents, carriers, or diluents, still recites the beta-neuropeptide natural product based on depending from claim 1. The natural product water can serve as a solvent, carrier and diluent.
Per MPEP 2106.04(c), as part of Step 2A Prong 1, a markedly different characteristics analysis is conducted, and for a composition-type product claim the markedly different characteristics analysis should be applied to the resultant nature-based combination, rather than its component parts.
Assuming at least one admixtured component of claim 1 is not nature-based product, considering the ‘wherein’ clauses do not provide amounts, ratios or percentages that achieve any of the respective functional limitations of the wherein clauses, claim 1 fails to demonstrate a markedly different characteristic relative to the beta-neuropeptide alone.
Additionally, the markedly different characteristics analysis is used to determine if the claimed nature-based product limitations are products of nature exceptions. The markedly different characteristics analysis is performed by comparing the nature-based product limitations in the claim(s) to their closest naturally occurring counterparts to determine if the claimed composition has markedly different characteristics. Here, the closest naturally occurring counterparts are the individual nature-based components alone (i.e., the noted peptide and any natural adjuvant such as a natural dispersant or emulsifying agent, e.g., lecithin). However, there is no evidence on the record that the claimed natural ingredients are chemically or structurally altered upon mixing. Furthermore, the claims lack product-by-process limitations—such as those requiring extreme temperatures or pressures—that would necessitate a chemical transformation. Because a compound and its properties are inseparable, and no such chemical change has occurred, a person of ordinary skill in the art would expect the ingredients, when all are natural products, to retain their natural, inherent properties, merely in a diluted state.
Claims 6-8 do not substantially alter this conclusion of no markedly different characteristic relative to the beta-neuropeptide alone by further requiring, respectively, wherein the composition is an aqueous composition, wherein the agricultural composition is either an insect control composition or a plant protection composition, and wherein the composition further comprises one or more solvents, carriers, or diluents. None of these modifications reasonably set forth a resultant agricultural composition that as a whole is markedly different from the beta-neuropeptide alone.
Step 2A Prong 2: NO: Claim 1 does not recite additional elements that amount to significantly more than the judicial exception. In part this is because, as noted above, claim 1 lacks amounts, ratios or percentages of the admixed components. Additionally, when the admixtured component(s) only include natural products, there are no recited additional elements that amount to significantly more than the judicial exception. Accordingly, claim 1 as a whole does not integrate the beta-neuropeptide judicial exception into a practical application of that exception. The additional limitations of claims 6-8 do not substantially alter this conclusion: none of the claim 1 agricultural composition wherein the composition is an aqueous composition in claim 6, the claim 1 agricultural composition as either an insect control composition or a plant protection composition in claim 7, nor when the claim 1 composition further comprises one or more solvents, carriers, or diluents as in claim 8, integrate the beta-neuropeptide into a practical application of that exception at least because the additional limitations, merely being in an aqueous composition, naming the type of agricultural composition, and adding one or more solvents, carriers, or diluents that can be in trace or insignificant amounts do not set forth a practical application distinguishable from the judicial exception (the claim 6 aqueous composition it is noted adds water, another judicial exception). Overall these claims’ compositions remain directed to the beta-neuropeptide judicial exception.
Further to this analysis, the claim 1 naming of the agricultural composition, as well as the claim 7 further naming as either an insect control composition or a plant protection composition, is merely generally linking the use of a judicial exception to a particular technological environment or field of use, see MPEP 2106.04(d).
Step 2B: NO: In making this Step 2B determination, an evaluation must be performed as to whether there are specific limitations or elements recited in the claim(s), in addition to the judicial exception(s), that are not well-understood, routine, and conventional activity in the field (and not claimed at a high level of generality) which would be indicative of an inventive concept. When the admixtured component(s) only include natural products the only possible limitation in addition to the judicial exception(s) would be the act of mixing natural products together. However, such an act would not represent an inventive concept. When the admixtured component(s) include non-natural products, claim 1 as interpreted above, where the claim 1 admixed components are not set forth in terms of amounts, ratios or percentages to achieve the ‘wherein’ clause functions, do not recite additional elements that amount to significantly more than the judicial exception itself. Further, given that water can be the added component to the composition of claim 6, the claim 7’s an insect control composition or a plant protection composition sub-naming of the claim 1 agricultural composition, and the claim 8 additional components do not recite additional elements that amount to significantly more than the judicial exception itself for these dependent claims.
Based on the above analyses, claims 1 and 6-8 are rejected under this section.
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.
Response to Arguments
Applicant's arguments filed 3/13/26 have been fully considered but they are not persuasive.
Applicant first argues against alleged “expansive interpretation of prior art teachings,” page 4, and refers to Ex parte Gleave. Each application examined in the Patent Office is fact specific, and here the facts and respective prior art teaching differ substantially from Ex parte Gleave. Fonargy indeed provides a general teaching, but its broad teachings provide motivation for those of ordinary skill in the art to develop insect neuropeptides for pest control. That Fonargy emphasizes modifications of natural neuropeptides for better cuticle penetration appears immaterial to its broad teachings (the examiner notes applicant’s earlier claims also went in this direction, but are now limited to the unmodified neuropeptide) of using insect neuropeptides for targeted insect control without harming non-target insects. Also, that it does not disclose a particular neuropeptide per se is not material, given its general teachings directed toward using insect neuropeptides for pest control given advances in research into this class of peptides. That Fonargy also teaches modifications bears on possible improvements, but the citation from page 146 on Remarks page 6 also clearly teaches effectiveness of synthetic PBANs without any suggested modification. A reference is good for all it teaches; that applicant has moved away from modifications in its evolution of claiming does not obviate the relevance of any particular teaching of this reference, including that when applied without modification “Synthetic PBAN (and other PKs) injected in vivo into females maintain their activity and induce intensive pheromone production, …”. Given this effectiveness, and multiple approaches for application (including oral administering as done by applicant’s limited evaluation), suggestions for improvements such as cited from Alstein and Nachman need not be taken, such as in the instant instance where applicant no longer is claiming modifications toward developing derivatives.
Particularly regarding arguments against Lee, pages 7-8, and also against Martins, page 8, and Boerjan, pages 8-9, in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
The rejection’s point about identity of the beta neuropeptide of Lee is not analogous to “an impermissible expansive interpretation” as in Ex parte Gleave because the facts and knowledge in the art differ substantially, here where sequence identity can infer differences in effectiveness, the basis for the argument by the examiner is not unreasonable.
Claim(s) 1 and 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over Adrien Fonagy, Acta Phytopathologica et Entomologica Hungarica 41 (1–2), pp. 137–152 (2006) (“Fonagy”, previously provided), in view of Lee and Boo, Peptides 26 (2005) 2404–2411 (“Lee”), previously provided, Martins, Insect Molecular Biology (2012) 21(4), 414–421 (“Martins”), previously provided, and Boerjan et al., Peptides 32 (2011) 1536-1539 (“Boerjan”, previously provided).
Claim 1 is as follows:
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Fonagy broadly teaches the need and importance of potential application of insect neuropeptides for pest control, Title, Abstract, the Abstract specifically teaching, “Thanks to the development of insect neuroendocrinology – in parallel to this – an even increasing need for modern, yet environmentally sound strategies of plant protection has arisen, becoming a driving force for insect physiologists to concentrate their efforts to combat pests more efficiently. The ultimate aim of these researchers is, however, not the total eradication of harmful insects, but rather, selective targeting by using species- or group-specific control strategies which can only be achieved by taking note of recent results in insect physiology, endocrinology, biochemistry and ecology. The rationale behind this approach is, that, since neuropeptides regulate key biological processes, these “special agents” or their synthetic analogues, mimetics, agonists or antagonists may be effective tools in combating insect pests in an environmentally more sound manner than with conventional pesticides,” underline emphasis added.
Fonagy thus suggests the use of insect neuropeptides for application to pest control, in a manner that is species-specific or alternatively group-specific, and in the body of the article discusses particular PBANs (pheromone biosynthesis activating neuropeptides), but does not teach the specifically claimed peptide of SEQ ID NO:2.
The level of ordinary skill in the art is high, and the person of ordinary skill in the art has an advanced degree in chemistry, biology, or biochemistry, and many such persons have training and/or education in insect pest management techniques.
Lee, however, teaches sequencing the gene encoding PBAN in the diamondback moth Plutella xylostella, Title, Abstract.
Lee identifies the specifically claimed amino acid sequence NADEDQQQSVDFTPRL (this also the elected peptide) as beta-NP (beta neuropeptide), Fig. 1 page 2407. This sequence, NADEDQQQSVDFTPRL is one of several distinct neuropeptides identified by Lee, Id. Further, Lee teaches that “All of the peptides are amidated in their C-termini and shared a conserved motif, FXPR(or K)L structure, as reported from other PBAN cDNAs,” Abstract, meeting the C-terminus amidation limitation for the elected and claimed species of peptide compound.
Lee suggests that this and other PBAN-like peptides “can act as PBAN in the moth, based on the report that all peptides containing the FXPRL-NH2 motif in their C-termini are involved in pheromonotropic activity,” page 2409.
While Fonagy does not teach this particular PBAN for use in pest control, a particular motivation for using this selected peptide is that this neuropeptide may have greater specificity to physiologically affect individuals of this moth species versus other moths and other insects. This is because this beta neuropeptide sequence comprising in its entirety NADEDQQQSVDFTPRL has the least ‘homology’, ranging from 35-38.8% identity, compared with other moth sequences, examine Table 1 page 2407 and Figure 1, page 2408, and associated text. This would suggest that it is more specific to this moth species, a clear advantage when desiring per Fonagy to be species specific, so as to not harm non-target insects. A PBAN peptide having lower identity compared with closer species on its face would be a better selection when considering Fonagy’s ‘selective targeting’ approach for species- or group-specific insect control strategies, see Abstract and last paragraph of page 146.
A further key motivation to focus on this peptide identified by Lee for pest control, rather than any others such as those set forth in Fonagy, is that Martins, Abstract, teaches that the diamondback moth Plutella xylostella is one of the most economically important agricultural pests, its larvae causing damage by feeding on the foliage of cruciferous vegetables. In view of this economic importance, this would substantially raise interest to select such peptide by one of ordinary skill in the art who is developing insect control peptides for specific agricultural pest insects. (Emphases added)
Therefore considering the teachings of the references cited thus far one of ordinary skill in the art would have considered using one of Lee’s FTPRL-ending beta neuropeptide sequences to mimic or antagonize the receptor of the diamondback moth, so to function as an active ingredient in an agricultural composition that can be used to spray or otherwise apply onto plants of interest to control and/or reduce infestation of an agricultural crop by the diamondback moth (that is, as the active agent of an insect control or plant protection type of agricultural composition). Per above based on the distance in sequence identity from other species’ PBANs this approach reasonably would be more species specific on its effect on this moth versus other moths and other insects so as to improve the probability of administering it to affect the diamondback moth target species rather than other insect and moth species that may not be harmful to agriculture including those that might be beneficial.
Neither Fonagy, Lee nor Martin explicitly teach this insecticidal compound, the claimed peptide having the formula of claim 1, admixtured with one or more adjuvants, preservatives, dispersants, emulsifying agents, or synergists that are in amounts to achieve their respective functions as set forth in claim 1 in functional limitations.
However, Boerjan teaches that dispersion of the insect neuropeptide corazonin in vegetable oil is a simple slow release approach to oral uptake in the selected insect, an albino locust deficient in corazonin, Title, Abstract. Boergan’s results indicate that dispersing corazonin in vegetable oil improves the effect of the dispersed peptide when taken orally by an insect, see Fig. 1 and associated text, so one of ordinary skill in the art would be motivated to formulate the Lee beta neuropeptide NADEDQQQSVDFTPRL-[NH2] (identical to what is claimed when considering Lee teaches such neuropeptides are C-terminally amidated) in a composition comprising an oil such as vegetable oil to improve oral uptake by the insect of interest, here the economically important diamondback moth. Such vegetable oil would function at least as an adjuvant to increase the delivery of the insecticidal compound, here the Lee beta neuropeptide NADEDQQQSVDFTPRL-[NH2].
In view of the respective teachings of the applied references, there would have been a reasonable expectation of success for formulating the amidated beta neuropeptide of Lee with a vegetable or other oil, which per Boerjan would provide for simple slow release and also improve its effect when taken orally by the target insect the diamondback moth. Based on the definitions of terms, see Claim Interpretation above, such vegetable oil so would function as so be classified as an adjuvant (and also as synergist, as well as a carrier and diluent, and also possibly solvent depending on behavior of the peptide in the oil).
Accordingly, claims 1 and 7, which merely further specifies two agricultural composition types, both related to insect control, would have been obvious.
Claim 8 also would have been obvious because the oil taught by Boerjan is a carrier and a diluent.
Claim(s) 6 is rejected under 35 U.S.C. 103 as being unpatentable over Adrien Fonagy, Acta Phytopathologica et Entomologica Hungarica 41 (1–2), pp. 137–152 (2006) (“Fonagy”, previously provided), in view of Lee and Boo, Peptides 26 (2005) 2404–2411 (“Lee”), previously provided, Martins, Insect Molecular Biology (2012) 21(4), 414–421 (“Martins”), previously provided, and Boerjan et al., Peptides 32 (2011) 1536-1539 (“Boerjan”, previously provided), as applied to claim 1 above, and further in view of “Suspension Concentrates”, Stepan Agricultural Solutions, 4 pages, 2021 (“Stepan”, previously provided), as evidenced by Batta, MethodsX 3 (2016) 119-127 (“Batta”, previously provided).
Claim 1 is rejected as set forth above.
Claim 6 depends from claim 1 and requires that the composition according to claim 1 is an aqueous composition.
Although it is clear from Boerjan and previously applied prior art that lipid moieties and/or lipid solvents aid in penetration and/or uptake of compounds by insects, so that these references might not initially appear supportive of a purely aqueous solution of a non-lipidated insect neuropeptide for applying to control insects, Stepan teaches that suspension concentrates are useful aqueous solutions used in agriculture. Per Stepan suspension concentrates are “formulations that consist of insoluble, solid active ingredients suspended in water with the aid of dispersing and wetting agents for safer and better application onto crop surfaces,” page 1. Among listed advantages are dustless, absence of flammable liquids improves storage and transportation safety, and adjuvants can be built in to enhance performance. The active ingredient can be from 5 to 80 percent on a weight/volume percent, with water to 100% after other components, page 1.
Based on the teachings of Stepan combined with those of the references applied to claim 1, one of ordinary skill in the art, toward preparing and distributing effective agricultural compositions comprising the claim 1 formula peptide admixed with one or more adjuvants or other claimed components, would have been motivated to provide these in a suspension concentrate formulation, such as for preparing and shipping, for later and further on-site preparation/dilution prior to use. Based on the teaching of Boerjan, the latter could include combining with oil for better uptake; Stepan’s inclusion of its BIO-SOFT® NC-10 nonionic emulsifier as one of a few specified adjuvants for suspension concentrate formulations also would suggest to one of ordinary skill in the art that the final dispersed product could be an emulsion formed from the aqueous suspension concentrate when mixed with oil at the site of use. As evidenced by Batta, pages 126-127, Additional Information Background, invert emulsions (water-in-oil type) are used in a number of types of formulations, including as insect biocontrol agents. At least one motivation to provide the claim 1 formula peptide in a suspension concentrate is to improve storage and transportation safety. There would have been a reasonable expectation of success given the teachings of Stepan, and also those of Boerjan.
Accordingly claim 6 would have been obvious.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH FISCHER whose telephone number is (571)270-7925. The examiner can normally be reached on Monday to Friday, 9:00 AM to 5:00 PM, however noting that the examiner will not normally be working on Wednesday-Friday and on Monday/Tuesday on alternating weeks, but will promptly answer messages upon his return to work.
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/JOSEPH FISCHER/Primary Examiner, Art Unit 1658
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