DETAILED ACTION
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 02/17/2026 has been entered.
Response to Amendment
Applicant’s response of 02/17/2026 has been received and entered into the application file. Claims 1-3 and 8-19 are pending in this application. Applicant’s amendment to claims has overcome the 112(b) rejection previously made.
Claim Rejections - 35 USC § 112
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 17 and 19 contain the trademark/trade name Borresperse NA, REAX 88 and Kraftsperse 25 S and Morwet D-425. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe protective colloid and, accordingly, the identification/description is indefinite.
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.
Claims 1-3, and 10-13 are rejected under 35 U.S.C. 103 as being unpatentable over Walter et al (WO 2015/127259), Lee et al (WO 1996/014743), Nielson et al (US 2018/0343865 A1, Priority: 11/12/2015), Ditmarsen et al. (WO 2012/071248 A1), Olenik et al. (WO 2019,030177 A1, Priority: 08/09/2017), and Hemminghause et al. (WO 2018/231913 A1, Priority 2017).
Walter et al teaches the use of 3-isoxazolidinones compounds as selective herbicides. Walter teaches the compound 2-(2,4-dichlorophenyl)methyl-4,4-dimethyl-3-isoxazolidinone (page 2, paragraph 2) which in this application is referred to as ‘DCPMI’. DCPMI in this application is one of the preferred active ingredients of b). Walter et al also teaches capsule suspension formulations of ‘DPCMI’ with organic and aqueous phase. Organic phase comprises of ‘DPCMI’ and Aromatic 200ND (naphthalene). Aqueous phase comprises of REAX 88B (kraft lignin), hexamethylenediamine, polymethylene polyphenylisocyanate, and other ingredients (page 52, example 9A). Walter discloses anilofos (page10), benfluralin (page 9), ethofumesate (page 8). In some embodiments, compositions can further include at least one antimicrobial, surfactant, thickener, antifoam, antifreeze, solvent, co-solvent, and additional active ingredients (page 19, 3rd paragraph). Walter et al also teaches compositions comprising a first herbicide such as ‘DPCMI’ and a second herbicide (page 6, 2nd paragraph). Walter discloses that a tank-mix combination of 2,4-DC (or DPCMI) + thifensulfuron-methyl were safe on barley whereas 2,4-DC (or DPCMI) alone was not safe on barley (page 133, 2nd paragraph). This highlights the need for safeners with DPCMI.
Lee et al teaches herbicidal compositions containing clomazone formulations with reduced volatility that is prepared by interfacial reaction of polymethylene polyphenyl isocyanate with a polyfunctional amine. The formulations of encapsulated clomazone reduced the volatility by at least fifty percent (page 1, line 26). Lee et al also teaches various formulations as seen listed under Table 6, page 22. Average particle size for formulations A-W are 2-26 micrometer.
Nielson et al teaches herbicidal compositions comprising an isoxazolo[5,4-b]pyridine and at least one further compound selected from herbicidally active compounds and safeners (abstract). Safeners are chemical compounds which prevent or reduce damage on useful plants without having a major impact on the herbicidal action of the active components. They can be applied either before sowings or in the pre- or post-emergence application. Examples of preferred safeners C are cloquintocet, mefenpyr, mephenate, naphthalic among others ([0151]). Nielson et al also teaches the agrochemical compositions can include suitable auxiliaries such as solvents, carriers, surfactants, penetration enhancers, protective colloids, and others ([0367]). Nielson discloses that safeners such as cloquintocet is routinely mixed with various herbicides.
Above references do not explicitly mention microcapsule comprising safener with active herbicide.
Ditmarsen et al. teach herbicidal capsules suspensions of acetochlor containing reduced amounts of safener (Abstract). The herbicide safener suitable for use with the aqueous dispersions of microencapsulated acetochlor herbicide includes mefenpyr (pg 6, lines 13-16). Ditmarsen et al. teach an aqueous acetochlor capsule suspension comprising a microcapsule comprising an inner liquid core, the inner liquid core having from about 550 gm/L of acetochlor and from about 0 g/L to about 50 g/L of an herbicide safener (Claim 1). Ditmarsen teaches that microencapsulated acetochlor and a safener improved biological performance – such compositions provide unexpected and surprising crop safety and equivalent or better weed control when compared to known microencapsulated acetochlor and herbicide safener compositions (page 3, lines 11-18). One of ordinary skill in the art would be motivated to encapsulate other herbicides with safeners together given this teaching.
Above references do not explicitly mention DCPMI with a safener such as cloquintocet-mexyl.
Olenik discloses crystal forms of 2-[(2,4-dichlorophenyl)methyl]-4,4-dimethyl-isoxazolidin-3-one (DCPMI) and use thereof in agrochemical formulations (Abstract). Olenik teaches that DCPMI is routinely mixed with safeners (page 1, lines 9-11). DCPMI can be formulated in various ways such as capsule suspensions (page 7, line 20). Safeners are preferably selected from the group consisting of cloquintocet-mexyl (page 16, line 18). Olenik teaches a combination of DCPMI and cloquintocet-mexyl capsule suspension.
Above references do not explicitly teach encapsulating herbicide with safener.
Hemminghaus discloses herbicidal microcapsules containing a combination of herbicides (Abstract). The process of microencapsulation is conducted using an interfacial polycondensation technique. Generally, this technique involves preparing an oil or discontinuous phase liquid containing the herbicides to be encapsulated, the first reactive monomeric/polymeric material(s), and any additional components to be encapsulated, such as solvents or safeners ([0132]).
It would have been obvious to one of ordinary person in the art before the effective filing date of the claimed invention to have added a capsule suspension concentrate comprising herbicidally active ingredient such as ‘DCPMI’ as taught in Walters et al. with isocyanate-reactive groups and mixture to reduce volatility of herbicides as taught in Lee et al. and further with safeners (with various herbicides) taught by Nielson et al. within capsule suspensions taught by Ditmarsen and Olenik to create a capsule suspension (encapsulated herbicide + safener) with reduced volatility and an effective herbicide.
Regarding claim 2, the capsule suspension concentrate wherein at least one active ingredient such as ‘DCPMI’ was taught and discussed above in claim 1.
Regarding claim 3, the capsule suspension concentrate comprising at least one protective colloid was taught and discussed above in claim 1.
Regarding claims 10 and 11, Nielson et al teaches herbicidal compositions comprising an isoxazolo[5,4-b]pyridine and at least one further compound selected from herbicidally active compounds and safeners (abstract). One further herbicidally active compounds include flufenacet, pyroxasulfone ([0095]), prosulfocarb ([0106]), pendimethalin ([0132]), diflufenican, aclonifen ([0122]), metribuzin ([0203]), propoxycarbazone ([0077]), and others. Nielson et al also teaches suitable auxiliaries to include thickeners, safeners, emulsifiers ([0367]).
Regarding claim 12, Nielson et al teaches active ingredients listed in herbicidal compositions.
Regarding claim 13, Walter et al teaches the compositions comprising ‘DCPMI’ may be applied pre-emergently or post emergently (page 18, 3rd paragraph). Walter et al also teaches a method of controlling undesired vegetation in a crop comprising applying to the locus of such vegetation such as cereals and oilseed rape (page 28, last paragraph).
Claims 8-9, 19 are rejected under 35 U.S.C. 103 as being unpatentable over Walter et al (WO 2015/127259), Lee et al (WO 1996/014743), Nielson et al (US 2018/0343865 A1, Priority: 11/12/2015), Ditmarsen et al. (WO 2012/071248 A1), and Olenik et al. (WO 2019,030177 A1, Priority: 08/09/2017), Hemminghause et al. (WO 2018/231913 A1, Priority 2017) as taught and discussed above for claims 1-3, 6, and 10-13, and in further view of Burakowska et al (WO 2015/165834 A1).
Burakowska et al teaches a process for producing microcapsules which contain a shell and a core of a liquid water-insoluble material (abstract). The invention relates to anionic polyvinyl alcohol copolymer as protective colloid for pesticidal polyurea microcapsules. Burakowska et al teaches a process for producing microcapsules where (a) a premix (I) is prepared from water and a protective colloid; (b) a further premix (II) is prepared from the water-insoluble material and at least bifunctional isocyanate (A) or a mixture of two or more different isocyanates containing (A); (c) the two premixes (I) and (II) are mixed together until an emulsion is formed; (d) at least a bifunctional amine is then poured into the emulsion from step (c); and (e) the emulsion is then heated until the microcapsules are formed. The liquid water-insoluble material comprises a pesticide and in steps (a), (b), (c), (d), and (e) further auxiliaries may be present and/or may be added (page 2, line 15 and claims 1 and 5).
Various types of oils, wetters, adjuvants, fertilizer, or micronutrients, and further pesticides (e.g. herbicides, insecticides, fungicides, growth regulators, safeners) may be added to the agrochemical compositions comprising them as premix or, if appropriate not until immediately prior to use (page 19, line 29).
The invention taught in Burakowska et al increases the stability of formulations, reduces toxicological effects, have an excellent biodelivery, and allows for a slow release of pesticides. The invention also allows for a reduced phytotoxicity of pesticide (page 20, line 33).
It would have been obvious to one of ordinary person in the art before the effective filing date of the claimed invention to have created an effective capsule suspension concentrate addressed above in claim 1 with the process taught in Burakowska et al.
Regarding claim 9, active ingredient dissolved in an organic, water-insoluble solvent was taught and discussed above in claim 8.
Regarding claim 14, Burakowska et al teaches a method of controlling phytopathogenic fungi and/or undesired plant growth and/or undesired insect or mite attack and/or regulating the growth of plants wherein the microcapsules are allowed to act on the respective pests, environment or crop plants, on the soil and/or on undesired plants and/or on the crop plants and/or on their environment (claim 15).
Regarding claim 15, Nielson discloses that routinely used auxiliaries include protective colloids ([0367]) such as polyvinyl alcohol ([0402]). Furthermore, Walter discloses that a CS formulation can comprise a thickener, Reax or lignin derivatives, and a solvent (pg 21, 1st paragraph).
Regarding claims 16-17, lignosulfonates are discussed above.
Regarding claim 18, Lee discloses the routine use of sulfonated naphthalene (pg 5, line 32). Nielson discloses that sulfonates of condensed naphthalenes is routinely used as suitable surfactants ([0371]).
Regarding claim 19, Morwet D-425 or alkylnaphthalene sulfonates are disclosed in Dittmarsen (pg 9, lines 1-2).
Response to Arguments
Applicant’s arguments filed 02/17/2026 have been fully considered and a new reference is incorporated to teach that an herbicide and safener can be encapsulated together in a microcapsule formulation.
Conclusion
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/JOHN SEUNGJAI KWON/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
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