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 .
Status
Applicant’s response dated 05 January 2026 to the previous Office action dated 09 September 2025 is acknowledged. Pursuant to amendments therein, claims 192-195, 198, 200-201, 204, 207-210, 212, and 214-216 are pending in the application.
The rejection under 35 U.S.C. 103 made in the previous Office action is withdrawn in view of applicant’s claim amendments, but a new (modified) rejection under 35 U.S.C. 103 is made herein in view of applicant’s claim amendments as set forth below.
The double patenting rejections made in the previous Office action are withdrawn in view of applicant’s claim amendments, but new (modified) double patenting rejections are made herein in view of applicant’s claim amendments as set forth below.
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
Claim(s) 192-195, 198, 200-201, 204, 207-210, 212, and 214-216 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (US 2015/0272116 A1; published 01 October 2015; of record) in view of Baur et al. (US 2017/0265477 A1; published 21 September 2017; filed 29 September 2015; of record).
Zhang et al. discloses a method of preparing a herbicidal mixture, the method comprising: combining an auxin herbicide comprising a first cation and an adjuvant comprising a salt comprising a second cation, wherein the salt is selected from the group consisting of: (a) an ammonium salt of Formula I (i.e., comprises a quaternary ammonium cation of instant Formula Ia wherein the numbers of carbon atoms of R1 to R4 and the total number of carbon atoms therein overlap with instant Formula Ia); (b) a salt containing a nitrogen heterocycle of Formula II (i.e., comprises a nitrogen heterocycle cation of instant formula IIa); (c) a phosphonium salt of Formula III (i.e., comprises a phosphonium cation of instant formula IIIa wherein the numbers of carbon atoms of R7 to R10 and the total number of carbon atoms therein overlap with instant Formula IIIa); and wherein the herbicidal mixture has a total herbicide concentration no greater than about 40% by weight acid equivalent (a.e) (i.e., no greater than about 400 g/L a.e.) (claim 1) wherein the herbicidal mixture is a concentration composition (claim 27) or an application mixture (i.e., tank mixture) (claim 28) wherein the herbicidal mixture further comprises a co-herbicide (claim 16) such as glufosinate or glyphosate or salts or combinations thereof (claim 19) wherein the concentration of the adjuvant in the herbicidal mixture is from about 0.1 wt% to about 10 wt% (claim 33) wherein the auxin herbicide may comprise dicamba or 2,4-D or salt thereof (claim 44) wherein salts thereof include monoethanolamine (i.e., monoethanolammonium) and triethanolamine (i.e., triethanolammonium) and diglycolamine (i.e., diglycolammonium) (paragraphs [0016]-[0017]) wherein the auxin herbicide comprises a salt of dicamba (claim 45) wherein the dicamba salt may be monoethanolamine (i.e., monoethanolammonium) or diglycolamine (i.e., diglycolammonium) (i.e., first cation) (claim 46) wherein the salt of Formula I may be tributylmethylammonium chloride or tetrabutylammonium chloride (claim 37) wherein the X may be Cl or OH (i.e., the salt of Formula I may be tributylmethylammonium hydroxide or tetrabutylammonium hydroxide) (claim 43) wherein the herbicidal mixture further comprises a surfactant (claim 25) wherein the surfactant is selected from the group consisting of alkoxylated tertiary etheramines, alkoxylated quaternary etheramines, alkoxylated etheramine oxides, alkoxylated tertiary amines, alkoxylated quaternary amines, alkoxylated polyamines, sulfates, sulfonates, phosphate esters, alkyl polysaccharides, alkoxylated alcohols, amidoalkylamines and combinations thereof (claim 26) wherein A is a substituted imidazole ring, a substituted pyridine ring, or a substituted pyrrolidine ring (claim 5) wherein the salt of Formula II is selected from the group consisting of 1-butyl-1-methyl-pyrrolidinium chloride, 1-ethyl-3-methylimidazolium chloride, 1-butyl-3-methylimidazolium chloride, 1-methyl-3-octylimidazolium chloride, cetylpyridinium chloride, and cetylpyridinium bromide (claim 7).
It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to follow the suggestions of Zhang et al. as discussed above and to make the herbicidal mixture of Zhang et al. as discussed above with auxin herbicide comprising dicamba salt with monoethanolammonium cation or 2,4-D salt with triethanolammonium cation, with a reasonable expectation of success, given that Zhang et al. teaches that the auxin herbicide can be for example a salt of dicamba or 2,4-D and that the cation of such salt can be for example monoethanolammonium or triethanolammonium.
Zhang et al. does not disclose the glufosinate as ammonium glufosinate as claimed.
Baur et al. discloses agrochemical compositions comprising glufosinate (title; abstract) wherein glufosinate especially preferably comprises glufosinate-ammonium (i.e., ammonium glufosinate) (paragraph [0036]).
It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Zhang et al. and Baur et al. by using the ammonium glufosinate of Baur et al. as the glufosinate in the methods and compositions of Zhang et al. as discussed above, with a reasonable expectation of success. A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so to formulate a suitable agrochemical composition comprising glufosinate because Zhang et al. teaches adding glufosinate or a salt thereof, and ammonium glufosinate is a known glufosinate salt used in agrochemical compositions comprising glufosinate as suggested by Baur et al., and the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination per MPEP 2144.07.
Regarding the claimed numbers of carbon atoms, such claimed ranges overlap the disclosed ranges, and a prima facie case of obviousness exists where claimed and prior art ranges overlap per MPEP 2144.05(I).
Regarding the claimed concentration range of auxin herbicide of at least 240 grams per liter a.e., Zhang et al. teaches a total herbicide concentration no greater than about 400 g/L a.e. (i.e., no greater than about 40 wt% a.e) as discussed above, which overlaps the claimed range given that co-herbicides are not required (i.e., are optional) by Zhang et al., and a prima facie case of obviousness exists where claimed and prior art ranges overlap per MPEP 2144.05(I). Moreover, the concentration of auxin herbicide is a known result-effective variable to achieve herbicidal effectiveness, and thus it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to optimize herbicidal activity in the methods and compositions of Zhang et al. in view of Baur et al. as discussed above by varying the concentration of auxin herbicide therein by routine experimentation per MPEP 2144.05(II), with a reasonable expectation of success.
Further regarding the claimed molar ratio ranges of auxin herbicide to adjuvant or quaternary ammonium salt, Zhang et al. teaches auxin herbicide concentration of no greater than about 40 wt% a.e. as discussed above and concentration of adjuvant of from about 0.1 wt% to about 10 wt%, or up to about 40/0.1 to 40/10, or about 400:1 to about 4:1, which overlaps the claimed ranges of about 2:1 to about 10:1 and about 2:1 to about 5:1, and a prima facie case of obviousness exists where claimed and prior art ranges overlap per MPEP 2144.05(I).
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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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.
Claims 192-195, 198, 200-201, 204, 207-210, 212, and 214-216 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-27 of U.S. Patent No. 9,743,662 in view of Baur et al.
Although the ‘662 claims do not disclose the glufosinate therein as ammonium glufosinate as instantly claimed, Baur et al. discloses agrochemical compositions comprising glufosinate (title; abstract) wherein glufosinate especially preferably comprises glufosinate-ammonium (i.e., ammonium glufosinate) (paragraph [0036]).
It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of the ‘662 claims and Baur et al. by using the ammonium glufosinate of Baur et al. as the glufosinate in the methods and compositions of the ‘662 claims, with a reasonable expectation of success. A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so to formulate a suitable agrochemical composition comprising glufosinate because the ‘662 claims teach adding glufosinate or a salt thereof, and ammonium glufosinate is a known glufosinate salt used in agrochemical compositions comprising glufosinate as suggested by Baur et al., and the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination per MPEP 2144.07.
Regarding the claimed numbers of carbon atoms, such claimed ranges overlap the disclosed ranges, and a prima facie case of obviousness exists where claimed and prior art ranges overlap per MPEP 2144.05(I).
Regarding the claimed concentration range of auxin herbicide of at least 240 grams per liter a.e., the ‘662 claims teach a total herbicide concentration no greater than about 400 g/L a.e. (i.e., no greater than about 40 wt% a.e) as discussed above, which overlaps the claimed range given that co-herbicides are not required (i.e., are optional) by the ‘662 claims, and a prima facie case of obviousness exists where claimed and prior art ranges overlap per MPEP 2144.05(I). Moreover, the concentration of auxin herbicide is a known result-effective variable to achieve herbicidal effectiveness, and thus it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to optimize herbicidal activity in the methods and compositions of the ‘662 claims in view of Baur et al. as discussed above by varying the concentration of auxin herbicide therein by routine experimentation per MPEP 2144.05(II), with a reasonable expectation of success.
Further regarding the claimed molar ratio ranges of auxin herbicide to adjuvant or quaternary ammonium salt, the ‘662 claims teach a molar ratio of about 1:3 to 3:1, which overlaps the claimed ranges of about 2:1 to about 10:1 and about 2:1 to about 5:1, and a prima facie case of obviousness exists where claimed and prior art ranges overlap per MPEP 2144.05(I).
Claims 192-195, 198, 200-201, 204, 207-210, 212, and 214-216 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-27 of U.S. Patent No. 10,485,232 in view of Baur et al.
Although the ‘232 claims do not disclose the glufosinate therein as ammonium glufosinate as instantly claimed, Baur et al. discloses agrochemical compositions comprising glufosinate (title; abstract) wherein glufosinate especially preferably comprises glufosinate-ammonium (i.e., ammonium glufosinate) (paragraph [0036]).
It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of the ‘232 claims and Baur et al. by using the ammonium glufosinate of Baur et al. as the glufosinate in the methods and compositions of the ‘232 claims, with a reasonable expectation of success. A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so to formulate a suitable agrochemical composition comprising glufosinate because the ‘232 claims teach adding glufosinate or a salt thereof, and ammonium glufosinate is a known glufosinate salt used in agrochemical compositions comprising glufosinate as suggested by Baur et al., and the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination per MPEP 2144.07.
Regarding the claimed numbers of carbon atoms, such claimed ranges overlap the disclosed ranges, and a prima facie case of obviousness exists where claimed and prior art ranges overlap per MPEP 2144.05(I).
Regarding the claimed concentration range of auxin herbicide of at least 240 grams per liter a.e., the ‘232 claims teach a total herbicide concentration no greater than about 400 g/L a.e. (i.e., no greater than about 40 wt% a.e), which overlaps the instantly claimed range given that co-herbicides are not required (i.e., are optional) by the ‘232 claims, and a prima facie case of obviousness exists where claimed and prior art ranges overlap per MPEP 2144.05(I). Moreover, the concentration of auxin herbicide is a known result-effective variable to achieve herbicidal effectiveness, and thus it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to optimize herbicidal activity in the methods and compositions of the ‘232 claims in view of Baur et al. as discussed above by varying the concentration of auxin herbicide therein by routine experimentation per MPEP 2144.05(II), with a reasonable expectation of success.
Further regarding the claimed molar ratio ranges of auxin herbicide to adjuvant or quaternary ammonium salt, the ‘232 claims teach a molar ratio of about 1:1 to 3:1, which overlaps the claimed ranges of about 2:1 to about 10:1 and about 2:1 to about 5:1, and a prima facie case of obviousness exists where claimed and prior art ranges overlap per MPEP 2144.05(I).
Claims 192-195, 198, 200-201, 204, 207-210, 212, and 214-216 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 11,452,290 in view of Baur et al.
Although the ‘290 claims do not disclose the glufosinate therein as ammonium glufosinate as instantly claimed, Baur et al. discloses agrochemical compositions comprising glufosinate (title; abstract) wherein glufosinate especially preferably comprises glufosinate-ammonium (i.e., ammonium glufosinate) (paragraph [0036]).
It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of the ‘290 claims and Baur et al. by using the ammonium glufosinate of Baur et al. as the glufosinate in the methods and compositions of the ‘290 claims, with a reasonable expectation of success. A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so to formulate a suitable agrochemical composition comprising glufosinate because the ‘290 claims teach adding glufosinate or a salt thereof, and ammonium glufosinate is a known glufosinate salt used in agrochemical compositions comprising glufosinate as suggested by Baur et al., and the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination per MPEP 2144.07.
Regarding the claimed numbers of carbon atoms, such claimed ranges overlap the disclosed ranges, and a prima facie case of obviousness exists where claimed and prior art ranges overlap per MPEP 2144.05(I).
Regarding the claimed concentration range of auxin herbicide of at least 240 grams per liter a.e., the ‘290 claims teach a total herbicide concentration no greater than about 400 g/L a.e. (i.e., no greater than about 40 wt% a.e), which overlaps the instantly claimed range given that co-herbicides are not required (i.e., are optional) by the ‘290 claims, and a prima facie case of obviousness exists where claimed and prior art ranges overlap per MPEP 2144.05(I). Moreover, the concentration of auxin herbicide is a known result-effective variable to achieve herbicidal effectiveness, and thus it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to optimize herbicidal activity in the methods and compositions of the ‘290 claims in view of Baur et al. as discussed above by varying the concentration of auxin herbicide therein by routine experimentation per MPEP 2144.05(II), with a reasonable expectation of success.
Further regarding the claimed molar ratio ranges of auxin herbicide to adjuvant or quaternary ammonium salt, the ‘290 claims teach a molar ratio of about 1:1 to 3:1, which overlaps the claimed ranges of about 2:1 to about 10:1 and about 2:1 to about 5:1, and a prima facie case of obviousness exists where claimed and prior art ranges overlap per MPEP 2144.05(I).
Claims 192-195, 198, 200-201, 204, 207-210, 212, and 214-216 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-33 of copending Application No. 17/892,319 in view of Baur et al.
Although the ‘319 claims do not disclose the glufosinate therein as ammonium glufosinate as instantly claimed, Baur et al. discloses agrochemical compositions comprising glufosinate (title; abstract) wherein glufosinate especially preferably comprises glufosinate-ammonium (i.e., ammonium glufosinate) (paragraph [0036]).
It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of the ‘319 claims and Baur et al. by using the ammonium glufosinate of Baur et al. as the glufosinate in the methods and compositions of the ‘319 claims, with a reasonable expectation of success. A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so to formulate a suitable agrochemical composition comprising glufosinate because the ‘319 claims teach adding glufosinate or a salt thereof, and ammonium glufosinate is a known glufosinate salt used in agrochemical compositions comprising glufosinate as suggested by Baur et al., and the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination per MPEP 2144.07.
Regarding the claimed numbers of carbon atoms, such claimed ranges overlap the disclosed ranges, and a prima facie case of obviousness exists where claimed and prior art ranges overlap per MPEP 2144.05(I).
Regarding the claimed concentration range of auxin herbicide of at least 240 grams per liter a.e., the ‘319 claims teach a total herbicide concentration no greater than about 400 g/L a.e. (i.e., no greater than about 40 wt% a.e), which overlaps the instantly claimed range given that co-herbicides are not required (i.e., are optional) by the ‘319 claims, and a prima facie case of obviousness exists where claimed and prior art ranges overlap per MPEP 2144.05(I). Moreover, the concentration of auxin herbicide is a known result-effective variable to achieve herbicidal effectiveness, and thus it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to optimize herbicidal activity in the methods and compositions of the ‘319 claims in view of Baur et al. as discussed above by varying the concentration of auxin herbicide therein by routine experimentation per MPEP 2144.05(II), with a reasonable expectation of success.
Further regarding the claimed molar ratio ranges of auxin herbicide to adjuvant or quaternary ammonium salt, the ‘319 claims teach auxin herbicide concentration of no greater than about 40 wt% a.e. and concentration of adjuvant of from about 0.1 wt% to about 10 wt%, or up to about 40/0.1 to 40/10, or about 400:1 to about 4:1, which overlaps the claimed ranges of about 2:1 to about 10:1 and about 2:1 to about 5:1, and a prima facie case of obviousness exists where claimed and prior art ranges overlap per MPEP 2144.05(I).
This is a provisional nonstatutory double patenting rejection.
Response to Arguments
Applicant's arguments filed 05 January 2026 have been fully considered but they are not persuasive.
Applicant argues that Zhang et al. does not include any direction or teaching to specifically combine the MEA salt of dicamba or the TEA salt of 2,4-D with ammonium glufosinate (remarks page 11). In response, Zhang et al. teaches that the auxin herbicide can be for example a salt of dicamba or 2,4-D and that the cation of such salt can be for example monoethanolammonium or triethanolammonium, which provides sufficient direction to select the MEA salt of dicamba or the TEA salt of 2,4-D. See, e.g., Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 10 USPQ2d 1843, 1845-46 (Fed. Cir. 1989) (choosing one guanidine from a disclosed list in a reference and one diuretic from another disclosed list in the reference to form a composition was obvious even in light of more than 1200 possible combinations thereof as the reference discloses generic combination of a guanidine and a diuretic along with lists of each, and thus "success" was "not dependent upon random variation of numerous parameters"; "That the 813 patent discloses a multitude of effective combinations does not render any particular formulation less obvious."; highlighting or describing specific preferences in connection with a generic formula is determinative in an analysis of anticipation but not obviousness); Ex parte Goldenberg, USPTO, PTAB Final Decision, Appeal 2012-010408, 2015 BL 237308, Application 11/104,594, *15-*16 ("the laundry list argument is unpersuasive because the instant rejection is for obviousness and Arkley notes that 'picking and choosing may be entirely proper in the making of a 103, obviousness rejection.'")(quoting In re Arkley, 455 F.2d 586, 587 (CCPA 1972)).
Moreover, Zhang et al. teaches adding glufosinate or a salt thereof to the mixture, and Baur et al. teaches ammonium glufosinate as a salt of glufosinate used in agrochemical compositions, which provides motivation to use ammonium glufosinate as the salt of glufosinate in the mixture and methods of Zhang et al.
Applicant argues that the claimed invention unexpectedly results in reduced volatility of auxin herbicides even in the presence of a source of ammonium ions (remarks page 12). In response, the primary reference of Zhang et al. already teaches such volatility reduction of auxin herbicides even in the presence of a source of ammonium ions (Zhang et al. abstract), and thus such result is not unexpected.
Applicant argues that Zhang et al. is directed to the problem of dicamba volatility whereas Baur et al. is directed to the problem of improving ammonium glufosinate formulations, and thus there is a lack of motivation or reason to combine the references and a lack of predicted success in combining the references given the unpredictability of the art of herbicidal formulations (remarks pages 12-15). In response, references need not address the same problems, or the same problem addressed by applicant – references are relevant as prior art for all they contain, and may be relied upon for all that they would have reasonably suggested to one having ordinary skill in the art, per MPEP 2123(I). In the instant case, Zhang et al. specifically teaches adding glufosinate or a salt thereof, and ammonium glufosinate is a known glufosinate salt used in agrochemical compositions comprising glufosinate as suggested by Baur et al., and thus the use of ammonium glufosinate as a salt of glufosinate in the composition of Zhang et al. would have been obvious and predictable.
Applicant argues that Zhang et al. provides no reason to select ammonium glufosinate, and to combine the cited references (remarks pages 14-15). In response, Zhang et al. discloses use of glufosinate or salt thereof as co-herbicide (paragraph [0054]; claim 52), and Baur et al. discloses agrochemical compositions comprising glufosinate (title; abstract) wherein glufosinate especially preferably comprises glufosinate-ammonium (i.e., ammonium glufosinate) (paragraph [0036]), and thus it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Zhang et al. and Baur et al. by using the ammonium glufosinate of Baur et al. as the glufosinate in the methods and compositions of Zhang et al. as discussed above, with a reasonable expectation of success. A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so to formulate a suitable agrochemical composition comprising glufosinate because Zhang et al. teaches adding glufosinate or a salt thereof, and ammonium glufosinate is a known glufosinate salt used in agrochemical compositions comprising glufosinate as suggested by Baur et al., and the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination per MPEP 2144.07. Such combination is not impermissible hindsight because it only relies upon teachings of the prior art.
Applicant argues that the broad molar ratio range constructed from Zhang et al. is too large and does not render the claimed molar ratio range obvious (remarks pages 16-17). In response, Zhang et al. teaches adjuvant as tributylmethylammonium hydroxide or tetrabutylammonium hydroxide as discussed in the rejection, and Zhang et al. also suggests molar ratio ranges of auxin herbicide to adjuvant or quaternary ammonium salt of about 400:1 to about 4:1, which overlaps the claimed range of about 2:1 to about 10:1, and a prima facie case of obviousness exists where claimed and prior art ranges overlap per MPEP 2144.05(I). Applicant’s argument that the constructed range is so large that it should be considered through the genus-species analysis is not persuasive because there is no indication that the range is so large as to encompass a very large number of possible distinct compositions per MPEP 2144.05(I) (e.g., compositions that would exhibit distinct properties such as to be considered distinct compositions).
Applicant argues that U.S. Patent No. 9,743,662 and continuations thereof do not specify the use of ammonium glufosinate generally or in combination with other claimed limitations such as first cation selected from the group consisting of monoethanolammonium, diglycolammonium, and triethanolammonium (remarks pages 17-18). In response, Baur et al. is cited for ammonium glufosinate, and the claims of ‘662 and continuations thereof cited in the double patenting rejections recite first cation as monoethanolamine, which is monoethanolammonium, and diglycolamin, which is diglycolammonium (see, e.g., Zhang et al. at col. 3 lines 54-56 and 65-67 (“organic ammonium salts, which are commonly referred to as amine salts”)).
Conclusion
No claims are allowed.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL B. PALLAY whose telephone number is (571)270-3473. The examiner can normally be reached Monday through Friday from 8:30 AM to 5:00 PM Eastern Time.
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/MICHAEL B. PALLAY/Primary Examiner, Art Unit 1617