DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Claims
Claims 43-48 and 50 are pending in the present application.
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 43-48 and 50 are rejected under 35 U.S.C. 103 as being unpatentable over Otsubo et al. (US 2006/0223710 A1) in view of Seckinger (US 2011/0015074 A1).
Regarding instant claims 43-45, Otsubo et al. teach herbicidal compositions comprising 5-40 wt.%, preferably 10-30 wt.%, of clethodim, 0.1-10 wt.%, preferably 0.1-5 wt.%, of an anionic surfactant, 0.1-30 wt.%, preferably 1-20 wt.%, of a nonionic surfactant, and 10-89.8 wt.% of an aromatic hydrocarbon ([0007]-[0008], [0010], [0023], [0025]; Claims 2-3). Otsubo et al. teach that the anionic surfactant is a sulfonate surfactant, preferably dodecylbenzene sulfonates (e.g., calcium dodecylbenzenesulfonate, sodium dodecylbenzenesulfonate and potassium dodecylbenzenesulfonate) ([0009]); the nonionic surfactant includes polyoxyethylene plant oils, such as polyoxyethylene castor oil ([0014]); and the aromatic hydrocarbon includes xylene, dimethylnaphthalene, alkylbenzene, Aromatic 150 and Aromatic 200 ([0024]).
Otsubo et al. further teach that the herbicidal compositions have good storage stability of clethodim ([0030]).
Regarding instant claims 46 and 50, Otsubo et al. teach that the herbicidal composition is utilized as an emulsifiable concentrate, and is applied to weeds, especially graminaceous weeds such as Agropyron tsukushiense, barnyardgrass (Echinochloa crus-galli), green foxtail (Setaria viridis), giant foxtail (Setaria faberi), large crabgrass (Digitaria sanguinalis), annual bluegrass (Poa annua), blackgrass (Alopecurus myosuroides), oats (Avena sativa), wild oats (Avena fatua), johnsongrass (Sorghum halepense), quackgrass (Agropyron repens), downy brome (Bromus tectorum) and bermudagrass (Cynodon dactylon) in broad-leaf crop (e.g. soybean, cotton, sugarbeet, peanut) fields ([0034]).
Otsubo et al. do not explicitly disclose castor oil ethoxylate having 27 to 37 ethoxy units, as instantly claimed.
However, Otsubo et al. teach that the nonionic surfactant includes polyoxyethylene castor oil ([0014]).
Seckinger teaches that suitable non-ionic surfactants include, for example, ethoxylated fatty acids, and ethoxylated fatty acids include castor or canola oil ethoxylates having at least 25, preferably 27 to 37 ethoxy units, such as Sunaptol® CA350 (castor oil ethoxylate with 35 ethoxy units) of Uniqema (formerly ICI Surfactants), Mergital® EL33 (castor oil ethoxylate with 33 ethoxy units) of Henkel KGaA, Eumulgin® C03373 (canola oil ethoxylate with 30 ethoxy units) of Henkel KGaA and Ukanil® 2507 (castor oil ethoxylate) of Uniqema ([0034]).
Seckinger also teaches non-limiting examples of the emulsifier include Agent 2201-76 and Agent 2416-20, Emulpon CO-360, T-Det C-40®, and Agnique™ SBO-10. Agent 2201-76 is manufactured by Stepan Company (22 W. Frontage Road, Northfield, Ill.), which is a blend of nonionic and anionic surfactants (82%). The ingredients in Agent 2201-76 are alkylbenzene sulfonate and fatty acid ethoxylate, aromatic petroleum hydrocarbon, 1-hexanol and naphthalene. Agent 2416-20 is also manufactured by Stepan Company (22 W. Frontage Road, Northfield, Ill.), which is a blend of nonionic and anionic surfactants (35-37%). Agent 2416-20 also includes aromatic petroleum hydrocarbon (57-58%), and naphthalene (6-7%). Emulpon CO-360 is manufactured by Akzo Nobel Chemicals Ltd. (525 West Van Buren, Chicago, Ill.), which contains ethoxylated castor oil (100% by weight) and oxirane (<0.001% by weight). T-Det C-40® may be purchased from Harcros Organics (5200 Speaker Road., P.O. Box 2930, Kansas City, Kans.), or from Akzo Nobel Chemicals Ltd. (525 West Van Buren, Chicago, Ill.), which is a non-ionic emulsifier, and a brand of ethoxylated (polyethoxylated) castor oil ([0036]).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare the herbicidal compositions according to Otsubo et al. wherein the sulfonate surfactant is an alkylbenzene sulfonate and the nonionic surfactant is a castor oil ethoxylate having 27 to 37 ethoxy units. Such would have been obvious because Otsubo et al. teach that alkylbenzene sulfonate surfactants are suitable anionic surfactants, and polyoxyethylene castor oil are suitable nonionic surfactants for use in their invention, and Seckinger teaches that suitable nonionic surfactants include castor oil ethoxylate having 27 to 37 ethoxy units. A person of ordinary skill in the art would have a reasonable expectation that formulations comprising clethodim, an alkylbenzene sulfonate, castor oil ethoxylate having 27 to 37 ethoxy units and an aromatic hydrocarbon would be effective herbicidal formulations for controlling weeds according to Otsubo et al. as well as providing good storage stability.
Regarding instant claims 47-48, Otsubo et al. teach application of their compositions to weeds, but they do not explicitly disclose that the weeds are post-emergent.
Seckinger teaches methods for controlling weeds comprising applying clethodim-containing compositions to a weed, a crop, or a habitat area, wherein the composition may be applied as a post-emergence or pre-emergence treatment ([0012], [0015], [0050]-[0053]; and Claims 28-36).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to apply the compositions according to Otsubo et al. to weeds as a post-emergent treatment. Such would have been obvious because Seckinger teaches that clethodim-containing compositions can be applied to weeds pre-emergent and post-emergent. A person of ordinary skill in the art would have a reasonable expectation that applying the compositions of Otsubo et al. to weeds post-emergent would effectively control the weeds since Seckinger teaches that post-emergent application of clethodim is effective for controlling weeds.
Response to Arguments
Applicant's arguments filed 21 July 2026 have been fully considered but they are not persuasive. Applicant argues that Otsubo does not explicitly disclose the claimed formulation. Otsubo instead discloses broad surfactant classes and examples of polyoxyethylene fatty acid esters, such as monooleate, dioleate, monolaurate, dilaurate, and monostearate materials. Otsubo does not teach or suggest the now claimed castor oil ethoxylates having 27 to 37 ethoxy units.
The examiner respectfully argues that Otsubo et al. teach that the nonionic surfactant includes polyoxyethylene plant oils, wherein a typical example of the polyoxyethylene plant oil is polyoxyethylene castor oil ([0011], [0014]). Otsubo et al. also includes polyoxyethylene castor oil in their examples (Examples 1-3). Therefore, it would have been obvious for a person of ordinary skill in the art to prepare compositions according to Otsubo et al. comprising clethodim, an anionic surfactant, a nonionic surfactant and an aromatic hydrocarbon (Claim 2), wherein the nonionic surfactant is polyoxyethylene castor oil ([0014]). Seckinger et al. teach similar compositions comprising clethodim and a nonionic surfactant, wherein the nonionic surfactant includes polyoxyethylene castor oil having 27 to 37 ethoxy units ([0034]). Therefore, it would have been obvious to select polyoxyethylene castor oil having 27 to 37 ethoxy units as the nonionic surfactant for use in the formulations according to Otsubo et al.
Applicant further argues that Otsubo's stability teaching is also directed to reducing water content through dehydration, not to Applicant's claimed surfactant system.
The examiner respectfully argues that the instant claims do not recite an amount of water that would be outside the teaching of Otsubo et al. Also, Otsubo et al. teach that all of the compositions tested, Reference Compositions 1-3 and Compositions 1-3, resulted in a decomposition ratio of less than 15 wt.% when kept at 60 °C for 7 days ([0046]). Seckinger et al. teach that compositions comprising clethodim, Aromatic 150, and Agent 2201-76 (Formulations A-1, B-1, and C-1) resulted in less than 15 wt.% degradation when stored at 54 °C for 14 days (Table 2). Therefore, the stability of the instantly claimed compositions is not unexpected.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nathan W Schlientz whose telephone number is (571)272-9924. The examiner can normally be reached 10:00 AM to 6:00 PM, Monday through Friday.
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/N.W.S/Examiner, Art Unit 1616
/ERIN E HIRT/Primary Examiner, Art Unit 1616
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