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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 3/16/2026 has been entered.
Claims Status
Receipt of Remarks/Amendments filed on 3/16/2026 is acknowledged. Claims 1-2, 4-5, 7-11, 13-16, 18-20 are currently pending. Claims 4, 10-11, 13-16, 18-20 have been withdrawn. Accordingly, claims 1-2, 5, 7-9 are presented for examination on the merits for patentability.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Terminal Disclaimer
The terminal disclaimer filed on 3/16/2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of US12029217, US12376590, US12310364, US12453349, US12285012, US12295367, US12465050, and any patent granted on Application Number 17289496 has been reviewed and is accepted. The terminal disclaimer has been recorded.
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.
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 1-2, 5, 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over Bangel (WO 2016/044229 A2; March 24, 2016)(previously cited).
Bangel teaches the claimed pyridine carboxylate herbicide in compound no. 8 (see: page 40, compound no. 8) (reproduced below) besides the fact that it is a methyl group instead of a methyl cyano as recited in the instant claims. Bangel teaches the generalized formula of a pyridine carboxylic acid herbicide in formula (III) (see: page 6), reproduced below, and states that R1 is a C1-C8 alkyl groups (see: page 6, lines 19-20). Bangel further defines an alkyl group as hydrocarbon moieties that include suitable substituents including the preferred cyano group (see: page 10, lines 1-18). Bangel additionally teaches that the ester includes a -CH2CN substituent (page 43, lines 17-25).
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compound no. 8
Bangel teaches the composition also comprises a safener (page 7, line 27-29). Bangel teaches the composition further comprises one or more additional herbicide to control undesirable vegetation, wherein the one or more additional herbicide include glufosinate (page 56, line 6; page 54, line 27-33). This reads on claims 8 and 9 since Bangel teaches one or more additional herbicides can be added but does not require adding herbicidal active ingredient in addition to the claimed pyridine carboxylate herbicide and glufosinate.
The teachings of Bangel have been set forth above. Bangel does not expressly teach the above limitations in a single example.
It would have been prima facie obvious for one of ordinary skill in the art before the effective filing date to have modified the teachings of Bangel, to have incorporated the claimed pyridine carboxylate herbicide, a safener and glufosinate herbicide because Bangel expressly teaches adding a pyridine carboxylate herbicide and a safener in the exemplified embodiments (e.g., see claims and examples). Further, as discussed supra, Bangel teaches the composition further comprises one or more additional herbicide to control undesirable vegetation, wherein the one or more additional herbicide include glufosinate. Therefore, all of the claimed elements were known in the single prior art reference and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions and the combination would have yielded predictable results (control undesirable vegetation) to one of ordinary skill in the art at the time of the invention. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
The skilled artisan would have been motivated to have substituted the -CH2CN substituent of Bangel in place of the methyl of Bangel for incorporation in of compound no. 8 of Bangel for herbicidal effects with a reasonable expectation of success as it is the preferred substituent as discussed supra. The simple substitution of one known element (e.g., the methyl of Bangel) in place of another (e.g. the -CH2CN of Bangel) in order to achieve predictable results (herbicidal effects) is prima facie obvious. See MPEP 2143, Exemplary Rationale B.
With respect to the claimed weight ratio of pyridine carboxylate herbicide (a) to glufosinate (b), while Bangel teaches the concentration of pyridine carboxylate herbicide and the additional pesticide (i.e., glufosinate) in the formulation can be varied and comprise from 1% to 95% by weight, Bangel does not expressly teach the claimed weight ratio of these components. However, it would have been obvious to one skilled in the art to manipulate the amounts and weight ratio of these two herbicidal components through routine experimentation to determine the optimal amount and ratio that would provide control of undesirable vegetation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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).
From the combined teaching of the cited reference, one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Conclusion
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/ALI S SAEED/Examiner, Art Unit 1616
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