`
`
`
`UNITED STATES DEPARTMENT OF COMMERCE
`United States Patent and Trademark Office
`Address: COMMISSIONER FOR PATENTS
`PO. Box 1450
`Alexandria, Virginia 2231371450
`www.uspto.gov
`
`16/163,381
`
`10/17/2018
`
`Gina Mercia SWART
`
`SYG-0134VA (115701-49)
`
`5708
`
`153842
`BakerHostetler
`
`7590
`
`10/25/2019
`
`Washington Square, Suite 1100
`Washington, DC 20036-5304
`
`EXAMINER
`
`PIHONAK, SARAH
`
`ART UNIT
`
`1627
`
`PAPER NUMBER
`
`NOTIFICATION DATE
`
`DELIVERY MODE
`
`10/25/2019
`
`ELECTRONIC
`
`Please find below and/or attached an Office communication concerning this application or proceeding.
`
`The time period for reply, if any, is set in the attached communication.
`
`Notice of the Office communication was sent electronically on above—indicated "Notification Date" to the
`
`following e—mail address(es):
`eofficemonitor @ bakerlaw.com
`
`PTOL-90A (Rev. 04/07)
`
`
`
`Advisory/lotion
`Before [/79 Filing ofa” Appea/Bfief
`
`Application No.
`
`16/1631381
`Examiner
`SARAH PIHONAK
`
`Applicant(s)
`
`SWART et al.
`Art Unit
`1627
`
`AIA (FITF) Status
`No
`
`-- 7'he MAILING DA TE of this communication appears on the cover sheet with the correspondence address --
`THE REPLY FILED 23 September 2019 FAILS TO PLACE THIS APPLICATION IN CONDITION FOR ALLOWANCE.
`N
`N Tl E
`F APPEAL FILED
`
`1.
`
`The reply was filed after a final rejection. No Notice of Appeal has been filed. To avoid abandonment of this application, applicant must timely file
`one of the following replies: (1) an amendment, affidavit, or other evidence, which places the application in condition for allowance;
`(2) a Notice of Appeal (with appeal fee) in compliance with 37 CFR 41.31; or (3) a Request for Continued Examination (RCE) in compliance with
`37 CFR 1.114 if this is a utility or plant application. Note that RCEs are not permitted in design applications. The reply must be filed within one of
`the following time periods:
`months from the mailing date of the final rejection.
`a) C] The period for reply expires
`b)
`The period for reply expires on: (1) the mailing date of this Advisory Action; or (2) the date set forth in the final rejection, whichever is later.
`In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of the final rejection.
`c) CI A prior Advisory Action was mailed more than 3 months after the mailing date of the final rejection in response to a first after-final reply filed
`within 2 months of the mailing date of the final rejection.The current period for reply expires
`months from the mailing date of
`[hepf/bfAdV/Sij/Ac/Ibfl or SIX MONTHS from the mailing date of the final rejection, whichever is earlier.
`ExammerNole: If box 1
`is checked, check either box (
`), (b) or (c). ONLY CHECK BOX (b) WHEN THIS ADVISORY ACTION IS THE
`FIRST RESPONSE TO APPLICANTS FIRST AFTER-FINAL REPLY WHICH WAS FILED WITHIN TWO MONTHS OF THE FINAL
`REJECTION. ONLY CHECK BOX (c) IN THE LIMITED SITUATION SET FORTH UNDER BOX (0). See MPEP 706.07( ).
`Extensions of time may be obtained under 37 CFR 1.136(a). The date on which the petition under 37 CFR 1.136(a) and the appropriate
`extension fee have been filed is the date for purposes of determining the period of extension and the corresponding amount of the fee. The
`appropriate extension fee under 37 CFR 1 .17(a) is calculated from: (1) the expiration date of the shortened statutory period for reply originally
`set in the final Office action; or (2) as set forth in (b) or (c) above, if checked. Any reply received by the Office later than three months after the
`mailing date of the final rejection, even if timely filed, may reduce any earned patent term adjustment. See 37 CFR 1.704(b).
`N TI E
`F APPEAL
`
`. A brief in compliance with 37 CFR 41.37 must be filed within two months of the date of filing the Notice
`2. E] The Notice of Appeal was filed on
`of Appeal (37 CFR 41 .37(a)), or any extension thereof (37 CFR 41 .37(e)), to avoid dismissal of the appeal. Since a Notice of
`Appeal has been filed, any reply must be filed within the time period set forth in 37CFR 41 .37(
`).
`AMENDMENTS
`
`3. CI The proposed amendments filed after a final rejection, but prior to the date of filing a brief, will n_o_t be entered because
`a) CI They raise new issues that would require further consideration and/or search (see NOTE below);
`b) CI They raise the issue of new matter (see NOTE below);
`c) C] They are not deemed to place the application in better form for appeal by materially reducing or simplifying the issues for
`appeal; and/or
`d) C] They present additional claims without canceling a corresponding number of finally rejected claims.
`NOTE:
`(See 37CFR 1.116 and 41 .33(
`)).
`4. D The amendments are not in compliance with 37CFR 1.121. See attached Notice of Non-Compliant Amendment (PTOL-324).
`5. D Applicants reply has overcome the following rejection(s):
`6. D Newly proposed or amended claim(s)
`would be allowable if submitted in a separate, timely filed amendment canceling the non-allowable
`claim( ).
`For purposes of appeal, the proposed amendment(s):(a)Dwi|l not be entered, or (b).wi|| be entered, and an explanation of how the
`new or amended claims would be rejected is provided below or appended.
`AFFIDAVIT R THER EVIDEN E
`
`7.
`
`8. CI A declaration(s)/affidavit(s) under 37 CFR 1.130(b) was/were filed on
`9. I:I The affidavit or other evidence filed after final action, but before or on the date of filing a Notice of Appeal will n_o_t be entered because applicant
`failed to provide a showing of good and sufficient reasons why the affidavit or other evidence is necessary and was not earlier presented. See 37
`CFR 1.116( ).
`10. CI The affidavit or other evidence filed after the date of filing the Notice of Appeal, but prior to the date of filing a brief, will n_o_t be entered because
`the affidavit or other evidence failed to overcome a_|| rejections under appeal and/or appellant fails to provide a showing of good and sufficient
`reasons why it is necessary and was not earlier presented. See 37 CFR 41 .33(d)(
`).
`11. C] The affidavit or other evidence is entered. An explanation of the status of the claims after entry is below or attached.
`RE
`E T F R RE
`N IDERATI N THER
`
`12.
`
`The request for reconsideration has been considered but does NOT place the application in condition for allowance because:
`See Continuation Sheet.
`
`
`
`).
`
`13. CI Note the attached Information D/lsc/osure Slalemen/(s). (PTO/SB/08) Paper No(
`14.
`Other: PTO—413,PTO—2323.
`sTATI IS OF CLAIMS
`15. The status of the claim(s) is (or will be) as follows:
`Claim(s) allowed:
`.
`Claim(s) objected tafl.
`Claim(s) rejected:1,6—8,12—21 and 23.
`Claim(s) withdrawn from consideration:
`/SARAH PIHONAK/
`Primary Examiner, Art Unit 1627
`US. Patent and Trademark Office
`PTOL-303 (Rev. 08-2013)
`
`Advisory Action Before the Filing of an Appeal Brief
`
`Paper No. 20191021
`
`
`
`Continuation Sheet (PTOL-303)
`
`App"°at'°" N°' 16/163381
`
`Continuation of REQUEST FOR RECONSIDERATION/OTHER 12. The request for reconsideration has
`been considered but does NOT place the application in condition for allowance because: The rejection
`under 103(a) as being unpatentable over Walter, WO 201241874 is maintained.
`
`Applicants have argued Walter does not render obvious a composition comprising (A) 3-(difluoromethyl)-
`N-methoxy-1-methyl-N-[1-methyl-2-(2,4,6-trichlorophenyl)ethyl]pyrazole-4-carboxamide; (B) the
`compound of formula Vll, isopyrazam, difenoconazole, azoxystrobin, prothioconazole, tebuconazole,
`pyraclostrobin, trifloxystrobin, fludioxonil, or cyprodinil; and (C) fluazinam, in a synergistically effective
`amount as determined by the Colby formula. Applicants have referred to MPEP 716.02(a)l wherein
`greater than expected results are evidence of nonobviousness, and have argued the amended claims are
`sufficient to rebut any case of obviousness. Applicants have further submitted it is unclear why the
`examiner rejected claim 22 in the previous office action, as the examiner has acknowledged the ratio of 4:
`1 to 1:4 or (A) to (B+C) is sufficient to overcome the present rejection. Applicants have further argued the
`recitation "the weight ratio of (a), (b), and (c) is a synergistically effective amount as determined by the
`Colby formula" is another more comprehensive way of claiming components commensurate in scope with
`the unexpected results.
`
`Applicants' arguments are not found persuasive, because although the amendments to the claims have
`been considered, the examiner respectfully disagrees that the recitation of "the weight ratio of (a), (b), and
`(c) is a synergistically effective amount as determined by the Colby formula" is commensurate in scope
`with Applicants' unexpected results as shown in the specification. Specifically, as discussed in the
`previous office action, Applicant has shown synergy for the weight ratio range of (A) to (B+C) of 4:1 to 1:4
`as recited in instant claims 9-11. However, claims 8 and new claim 23 recite a much broader weight ratio
`range of (A) to (B+C) which Applicants have not shown unexpected results for. Specifically, claim 8 recites
`a weight ratio range of 2000:1 to 1:1000, and claim 23 recites a weight ratio range of 10:1 to 1:10;
`unexpected results have not been shown for the full scope of these ranges. Since claims 8 and 23 depend
`on amended claim 1, the recitation of "the weight ratio of (a), (b), and (c) is a synergistically effective
`amount as determined by the Colby formula" of claim 1 is not found to be commensurate in scope with
`Applicants' unexpected results. The 103(a) rejection over amended claims 1, 6-8, 12-21, and 23 over
`Walter is thus maintained. Claims 9-11 are objected to for being dependent on a rejected claim, but would
`otherwise be allowable if rewritten in independent form.
`
`

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