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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 10 September 2025 has been entered.
Status of the Claims
Claims 1, 3, 5 and 10-17 are pending in the present application.
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, 3, 5, 10-15 and 17 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. Instant claims 1 and 15 recite less than or equal to 10 wt.% of an alkylpolysaccharide based on the total weight of the surfactant composition. The instant specification does not provide adequate written support for this concentration range of the alkylpolysaccharide. The Remarks filed 10 September 2025 state that support is found in the examples. The only example comprising an alkylpolysaccharide is Example 4, which comprises 5 wt% of APG0810. The examples do not comprise any other concentration of alkylpolysaccharide. The instant specification also does not teach a concentration range for the alkylpolysaccharide. Therefore, the specification does not provide adequate written support for the concentration range claimed.
Claims 2, 5, 10-14 and 17 depend from claim 1 and do not recite a concentration of alkylpolysaccharide that was described in the specification. Therefore, these claims contain the same limitations as claim 1.
The examiner recommends amending claims 1 and 15 to recite 5 wt.% of an alkylpolyglucoside.
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 1, 3, 5, 10-15 and 17 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1 and 15 state “R3 is H, C1-C4 alkyl, alkenyl, hydroxyalkyl or hydroxyalkenyl”, and “R4 is C1-C22 alkyl, alkenyl, hydroxyalkyl or hydroxyalkenyl”. It is unclear whether the alkenyl, hydroxyalkyl or hydroxyalkenyl of R3 and R4 are limited by the carbon chain lengths recited for the alkyl, such as R3 is H, C1-C4 alkyl, C1-C4 alkenyl, C1-C4 hydroxyalkyl or C1-C4 hydroxyalkenyl, or if the carbon size is only limiting for the alkyl groups.
Claims 3, 5, 10-14 and 17 do not clarify the limitations for the alkenyl, hydroxyalkyl and hydroxyalkenyl. Therefore, these claims are also indefinite for the same reason as recited above.
For the purposes of applying prior art, the examiner is construing the claims as limiting the size of the alkenyl, hydroxyalkyl or hydroxyalkenyl by the same carbon limit as the preceding alkyl groups.
Instant claim 17 states that the surfactant composition of claim 1 reduces foaming in dispersions of the agrochemical formulation more than a surfactant composition that does not comprise components (a)-(d). It is unclear if Applicant means that the surfactant composition of claim 1 reduces foaming more than any other surfactant compositions, regardless of whether it comprises additional anti-foaming agents. The instant specification only compares against compositions that comprise the alkyl sulfate (AS) and either the sulfosuccinate or the fatty acid, and optionally the alkylpolysaccharide, but it does not compare against other surfactant compositions that do not comprise components (a)-(d), which would mean the comparative example does not comprise any of the fatty acid, sulfosuccinate, alkyl sulfate and alkylpolysaccharide.
The examiner recommends that Applicant cancel claim 17 or amend it to more accurately reflect the comparative examples of the specification.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 3 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 3 states that the sulfosuccinate based compound can be an agriculturally acceptable salt of mono-ester of sulfosuccinic acid, but claim 1 requires the sulfosuccinate based compound to be a di-ester (i.e., neither R1 nor R2 can be an H, so the sulfosuccinate based compound is a di-ester). Also, claim 3 states that each of [the agriculturally acceptable salt of mono-ester or di-ester of sulfosuccinic acid] is optionally alkoxylated, but claim 1 already states that n is 0 or an integer of 0 to 100. Thus, the sulfosuccinate based compound is optionally alkoxylated in claim 1. Applicant may cancel the claim, amend the claim to place the claim in proper dependent form, rewrite the claim in independent form, or present a sufficient showing that the dependent claim complies with the statutory requirements.
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 1, 3, 5 and 10-17 are rejected under 35 U.S.C. 103 as being unpatentable over Messenger et al. (US 4,692,271) in view of Gaytan et al. (WO 2009/100101 A2) and Castro et al. (Environmental Chemistry Letters, 2014).
Regarding instant claims 1 and 16, Messenger et al. teach pumpable aqueous surfactant compositions comprising water and at least two surfactants including alkyl sulfates, sulfosuccinates, and fatty carboxylates (Claim 1). Messenger et al. specifically teach exemplary compositions comprising at least 10% by weight of an alkyl sulfate and at least 10% by weight of a sulfosuccinate (Claims 9, 12, 14, 16, 18, 20, 27). Messenger et al. teach an active mixture consisting of at least 5% by weight each of surfactant products (col. 2, ln. 47); typically the compositions of the invention contain two, three or four different kinds of surfactant each in a concentration of more than 10% by weight of the composition (col. 4, ln. 38-41; claims 8-9, 12, 14, 16, 18, 20-30). Messenger et al. teach surfactants include fatty carboxylates, alkyl sulphates, and alkyl sulphosuccinates, wherein in each case the alkyl groups have an average total of from 8 to 22 carbon atoms (col. 2, ln. 59-60; col. 5, ln. 26-29; Claim 1). Messenger et al. teach that exemplary surfactants include salts of sulphated C12-C14 alcohols (ESB70, LX65, LX50, LQ77, LX40, LZ90) and salts of sulphosuccinates (SDOS, SDD, SGG, SGG/C) (Table bridging col. 6-7). The sulphosuccinates include sodium dioctyl sulphosuccinate (SDOS), disodium alkylethoxy sulphosuccinate (SDD), and disodium coconut monoethanolamide ethoxy sulphosuccinate based on the two mole ethoxylate of coconut fatty acid monoethanolamide (SGG) (col. 7). Messenger et al. further teach compositions comprising a combination of alkyl sulfate and sulfosuccinate (Examples 6, 9, 12, 13).
Messenger et al. do not explicitly disclose an exemplary composition comprising fatty acid salts combined with the alkyl sulfate and sulfosuccinate compound.
However, Messenger et al. teach that fatty carboxylates (i.e., fatty acid salts) are suitable for combination with alkyl sulfates and sulfosuccinates (Abstract; col. 2, ln. 53-54; Claim 1).
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 surfactant compositions according to Messenger et al. comprising alkyl sulfates, sulfosuccinates and fatty acid salts, each in a concentration of more than 10% by weight of the composition. Such would have been obvious because Messenger et al. teach compositions of the invention comprising two, three or four different kinds of surfactant each in a concentration of more than 10% by weight of the composition, wherein alkyl sulfates, sulfosuccinates and fatty carboxylates are suitable surfactants for use in their invention.
Messenger et al. also do not explicitly disclose compositions comprising an alkylpolysaccharide combined with the fatty acid salt, sulfosuccinate compound and alkyl sulfate.
Gaytan et al. teach surfactant mixtures, wherein the surfactants include a fatty acid (e.g., ammonium tallowate and sodium stearate), a sulfosuccinate, an alkyl sulfate, and an alkylpolyglucoside (i.e., an alkylpolysaccharide) (pg. 25, ln. 23; pg. 26, ln. 11-13, 19-20; pg. 28, ln. 6-7). Gaytan et al. teach that the compositions are solid formulations (Abstract).
Castro et al. teach that agrochemical formulations require the use of a surface active agent or surfactant, which is not only essential for its preparation and maintenance of long-term physical stability, but also essential for enhancing biological performance of the agrochemical, increasing the foliar uptake of herbicides, growth promoters and defoliants (pg. 85, col. 2, para. 2). The hydrophilic groups of anionic surfactants consist in most cases of sulphonate, sulphate or carboxylate groups with either a sodium or a calcium as counterion (pg. 86, col. 1, para. 2). Anionic surfactants include C8-C20 linear or branched chain fatty acid salts (Table 1). Castro et al. further teach that alkyl polyglycosides (APGs) are water soluble with excellent adjuvant properties. APGs are made from renewable raw materials and can be put into a highly concentrated liquid or dry formulations. They are called ‘‘green surfactants’’ because they are very safe to the environment. Alkyl polyglycosides are superior surfactants with outstanding wetting properties and are used as adjuvants for pesticides as they improve the spreading and enhance the uptake of the pesticides (pg. 91, col. 1, para. 4 to col. 2, para. 1).
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 a surfactant composition comprising a C8-C20 fatty acid salt, a sulfosuccinate, an alkyl sulfate, and an alkylpolyglucoside (APG), as reasonably suggested by Messenger et al., Gaytan et al. and Castro et al. Such would have been obvious in the absence of evidence to the contrary because it is generally prima facie obvious to use in combination two or more ingredients that have previously been used separately for the same purpose to form a third composition useful for that same purpose. The idea of combining them flows logically from their having been taught individually in the prior art. In re Kerkhoven 626 F.2d 646, 850, 205 USPQ 1069, 1072 (CCPA 1980). Also, Castro et al. teach that APGs are water soluble with excellent adjuvant properties; can be put into a highly concentrated liquid or dry formulations; are very safe to the environment; and are superior surfactants with outstanding wetting properties and are used as adjuvants for pesticides as they improve the spreading and enhance the uptake of the pesticides. Thus, it would have been obvious to prepare a surfactant composition consisting of a fatty acid salt, a sulfosuccinate and an alkyl sulfate according to Messenger et al., as well as an alkylpolysaccharide, as reasonably suggested by Gaytan et al. and Castro et al.
Regarding the concentration of the fatty acid salt, sulfosuccinate and alkyl sulfate, Messenger et al. teach that the surfactant composition comprises at least 5% by weight of each surfactant (col. 2, ln. 44-54). It would have been prima facie obvious for a person of ordinary skill in the art to determine through routine experimentation the optimum concentration of each surfactant within the ranges taught by Messenger et al.
The examiner respectfully points out the following from MPEP 2144.05: “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 (“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969); Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed.Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997).
Regarding instant claim 3, Messenger et al. teach that the sulphosuccinates include sodium dioctyl sulphosuccinate (SDOS), disodium alkylethoxy sulphosuccinate (SDD), and disodium coconut monoethanolamide ethoxy sulphosuccinate based on the two mole ethoxylate of coconut fatty acid monoethanolamide (SGG) (col. 7).
Regarding instant claim 5, Messenger et al. teach the sodium salt of C12 and C14 alkyl sulfate (ESB70, LX28, LX65) (col. 6; col. 9, ln. 48-52).
Regarding instant claims 10-12, Messenger et al. do not explicitly disclose a solid agrochemical composition comprising an agriculturally active ingredient and their surfactant composition.
Gaytan et al. teach a solid formulation comprising an herbicide and the wetting agents/surfactants (Claims 2-4, 16).
Castro et al. teach that agrochemical formulations require the use of a surface active agent or surfactant, which is not only essential for its preparation and maintenance of long-term physical stability, but also essential for enhancing biological performance of the agrochemical, increasing the foliar uptake of herbicides, growth promoters and defoliants. Around 230,000 tonnes of surfactants is used annually in agrochemical products, with a formulation typically containing 1-10% of one or more surfactants (pg. 85, col. 2, para. 2 and 4).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art to include an herbicide in the compositions according to Messenger et al. in order to provide herbicidal compositions, as reasonably suggested by Gaytan et al. and Castro et al., wherein the agrochemical composition comprises 1-10% of the surfactant composition.
Regarding instant claim 13, Messenger et al. do not explicitly disclose a solid agrochemical composition in the instantly claimed forms.
Gaytan et al. teach solid formulations in the form of a wettable granule or wettable powder (pg. 7, ln. 16-26; pg. 18, ln. 18-25; Claim 17).
Castro et al. teach that APGs are water soluble with excellent adjuvant properties, and can be put into a highly concentrated liquid or dry formulations (pg. 91, col. 1, para. 4).
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 a solid agrochemical formulation comprising the surfactant mixture of Messenger et al., Gaytan et al. and Castro et al., and an agriculturally active ingredient.
Regarding instant claim 14, Messenger et al. do not include chelating agents in their surfactant compositions.
Regarding instant claims 15 and 17, Messenger et al. do not explicitly disclose reducing foaming of a solid agrochemical composition.
However, Messenger et al. in view of Gaytan et al. and Castro et al. teach surfactant compositions comprising the same surfactants as instantly claimed. Gaytan et al. teach that examples of suitable anti-foaming agents include fatty acids (e.g., stearic acid) or esters thereof (e.g., calcium or magnesium stearate). Such components are preferably present in a content up to about 3% by weight based on the overall weight of the formulation. Specific, non-limiting examples of anti-foaming agents useful according to the invention include magnesium stearate. (pg. 30, ln. 10-34).
Therefore, in the absence of evidence to the contrary, a person of ordinary skill in the art would reasonably expect the fatty acid salts according to Messenger et al., Gaytan et al. and Castro et al. to reduce foaming of the solid compositions.
Response to Arguments
Applicant's arguments filed 10 September 2025 have been fully considered but they are not persuasive. Applicant argues that Messenger does not teach or suggest anything related to agrochemical formulations nor reducing foam in dispersions of agrochemical formulations. Messenger instead focuses on specific concentrations of pairs of surfactants to prepare concentrated compositions that are pumpable.
The examiner respectfully argues that Messenger et al. teach that mixtures of surfactants are prepared and sold for a wide variety of industrial and domestic applications (col. 1, ln. 10-11). Gaytan et al. teach solid formulations comprising pesticidal compounds and one or more surfactants (pg. 3, ln. 3-5; pg. 25, ln. 20-22). Castro et al. teach that pesticide efficacy is improved by surfactants. Increase in the foliar uptake is particularly useful for herbicides, growth regulators and defoliants, because less active compounds are needed, thus decreasing cost and pollution (Abstract). Castro et al. teach that agrochemical formulations require the use of a surface-active agent or surfactant, which is not only essential for its preparation and maintenance of long-term physical stability, but also essential for enhancing biological performance of the agrochemical, increasing the foliar uptake of herbicides, growth promoters and defoliants (pg. 85, col. 2).
Therefore, it would have been obvious for a person of ordinary skill in the art to prepare the surfactant compositions according to Messenger et al., Gaytan et al. and Castro et al. for use in agrochemical formulations.
In turning to Gaytan, Applicant submits that the reference does not teach that the addition of the alkylpolyglucosides to a surfactant composition would provide improved wettability and foam reduction. Rather, the alkylpolyglucoside is described solely as a wetting agent that should not be used in amounts more than 5% while avoiding formation of excessive foaming (i.e., controlling the amount of foam, as noted by the Examiner). Further, while Gaytan also describes their wetting agents as being one or more nonionic, cationic, anionic and amphoteric surfactants, Gaytan's teaching as a whole suggests that these components, as wetting agents, should not be used in amounts more than 5% in solid herbicidal formulations. Gaytan further teaches that amounts of the wetting agent below 5% achieve maximum wetting performance while avoiding formation of excessive foam and lowering the suspension properties when the solid composition is mixed in a carrier such as water. Messenger also teaches that the composition should contain minor amounts, up to 5% by weight of the active mixture, of other surfactants such as non- ionic or amphoteric surfactants.
Applicant asserts that, in starting from Messenger, Applicant does not believe that a person of ordinary skill in the art would have found inspiration to combine Messenger with Gaytan and Castro to formulate the instantly claimed invention which provides wettability and foam reduction.
The examiner respectfully argues that Messenger et al. in view of Gaytan et al. and Castro et al. teach surfactant compositions comprising the same surfactants as instantly claimed. Gaytan et al. teach that examples of suitable anti-foaming agents include fatty acids (e.g., stearic acid) or esters thereof (e.g., calcium or magnesium stearate). Such components are preferably present in a content up to about 3% by weight based on the overall weight of the formulation. Specific, non-limiting examples of anti-foaming agents useful according to the invention include magnesium stearate. (pg. 30, ln. 10-34).
Therefore, in the absence of evidence to the contrary, a person of ordinary skill in the art would reasonably expect the fatty acid salts according to Messenger et al., Gaytan et al. and Castro et al. to reduce foaming of the solid compositions.
Applicant further asserts that the technical effect of the present application is demonstrated in the Examples of the specification as filed. As shown in table 2 of the present application, both CE8 and EX4 contain AP (5%), but CES lacks fatty acid salt (FA), and results in poor foam control. CE7 also includes the AP, but without the presence of the SS. This shows that AP without the combination of the FA, SS and AS (as in CE8) cannot achieve the effects of the present invention. Rather, the AP must be combined with specific proportions of the FA, the sulfosuccinate based compound (SS), and the alkyl sulfate (AS). Moreover, EX4 achieves a synergistic effect (balance between foam reduction and wettability) by combining AP with FA, SS, and AS in specific proportions. Thus, and as shown in new claim 17, the instantly claimed surfactant composition reduces foam more than a surfactant composition that does not comprise the instantly claimed components. This combined effect is never taught or suggested in either Messenger or Gaytan.
The examiner respectfully argues that the instant claims are not commensurate in scope with the examples in the specification. The example surfactant compositions in the specification comprise 80-90 wt% alkyl sulfate (Rodapon LS-94/WP), 5.0 wt% sodium dioctylsulphosuccinate, 5-15 wt% sodium cocoate fatty acid, and either 0 or 5 wt% alkylpolyglucoside (Examples 1-4). The instant claims recite 1-20 wt% of a C8 to C22 fatty acid salt, 1-20 wt% of a sulfosuccinate based compound, which is optionally alkoxylated, 50-90 wt% of a C16-C22 alkyl sulfate, and less than or equal to 10 wt% of an alkylpolysaccharide. Given the unexpected reduction of foam produced by the inventive examples, the individual compounds and limited concentration ranges are not representative of the entire genus being claimed. A person of ordinary skill in the art would not be able to predict whether compositions comprising other fatty acids, sulfosuccinates, alkyl sulfates and alkylpolysaccharides at various concentrations would have the same reduction in foam as the examples.
Further, Gaytan et al. teach that examples of suitable anti-foaming agents include fatty acids (e.g., stearic acid) or esters thereof (e.g., calcium or magnesium stearate). Such components are preferably present in a content up to about 3% by weight based on the overall weight of the formulation. Specific, non-limiting examples of anti-foaming agents useful according to the invention include magnesium stearate. (pg. 30, ln. 10-34). Therefore, a person of ordinary skill in the art would reasonably expect the fatty acid salt of Messenger et al., Gaytan et al. and Castro et al. to reduce foaming of the surfactant compositions. Also, the instant claims are not commensurate in scope with the data in Table 2 of the specification. Table 2 of the specification only shows one composition comprising an alkyl sulfate, a sulfosuccinate, a fatty acid and an alkyl polysaccharide (Example 4). This composition has specific surfactants at specific concentrations: 5.0 wt.% sodium cocoate, 5.0 wt.% sodium dioctylsulfosuccinate, 85.0 wt.% Rhodapon® LS-94/WP (sodium lauryl sulfate) and 5.0 wt.% APG0810 (caprylyl/capryl glucoside). These species and concentrations are not representative of the entire genus of C8-C22 fatty acids, sulfosuccinates of formula (I), alkyl sulfates, and alkylpolysaccharides claimed; or the concentration ranges claimed, which include 1-50 wt% fatty acid, 1-50 wt% sulfosuccinate, 10-90 wt% alkyl sulfate, and very minor amounts and up to 88 wt.% of the alkylpolysaccharide.
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 1, 3, 5 and 10-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4 and 6-15 of copending Application No. 17/273,211 in view of Lawler et al. (US 2,969,332), Gaytan et al. (WO 2009/100101 A2) and Castro et al. (Environmental Chemistry Letters, 2014). The instant claims and the ‘211 Application are both drawn to a surfactant composition comprising a sulfosuccinate based compound and an alkyl sulfate. The ‘211 Application does not claim a fatty acid salt and an alkylpolysaccharide. However, Lawler et al. found that the higher fatty acids, by which term we mean the saturated and unsaturated aliphatic monocarboxylic acids of 16 or more carbon atoms and preferably about 16-22 carbon atoms, are effective anti-foaming agents for the dioctyl sulfosuccinate alkali metal and ammonium salts, and that they will reduce both foam formation and foam stability without decreasing the wetting power of the surfactants to any considerable extent (col. 1, ln. 61-68). Also, Gaytan et al. teach solid formulations comprising a mixture of surfactants, such as alkylpolyglucosides (pg. 25, ln. 23). Gaytan et al. teach the desire to reduce the amount of foam (pg. 25, ln. 17).
Castro et al. teach that agrochemical formulations require the use of a surface active agent or surfactant, which is not only essential for its preparation and maintenance of long-term physical stability, but also essential for enhancing biological performance of the agrochemical, increasing the foliar uptake of herbicides, growth promoters and defoliants (pg. 85, col. 2, para. 2). Castro et al. teach that alkyl polyglycosides (APGs) are water soluble with excellent adjuvant properties. APGs are made from renewable raw materials and can be put into a highly concentrated liquid or dry formulations. They are called ‘‘green surfactants’’ because they are very safe to the environment. Alkyl polyglycosides are superior surfactants with outstanding wetting properties and are used as adjuvants for pesticides as they improve the spreading and enhance the uptake of the pesticides (pg. 91, col. 1, para. 4 to col. 2, para. 1).
Therefore, it would have been prima facie obvious to include fatty acids according to Lawler et al. and alkylpolyglucosides according to Gaytan et al. and Castro et al. in the compositions of the ‘211 Application in order to reduce or control foaming.
This is a provisional nonstatutory double patenting rejection.
Response to Arguments
Applicant argues that the claims are patentable for the same reasons as discussed above. Therefore, the examiner’s response above is repeated herein.
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
/Mina Haghighatian/Primary Examiner, Art Unit 1616