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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 06 November 2025 has been entered.
Claim Status
Applicant’s claim amendments, declaration, and arguments, filed 06 November 2025, are acknowledged.
Claims 1, 3-12 and 14-16 are pending.
Claims 2 and 13 are cancelled.
Claims 5 & 14-16 are withdrawn.
Claim 1 is amended.
Claims 1, 3, 4 & 6-12 are under consideration.
Examination is to the extent of the following species:
Emulsifier- oil-in water emulsifier;
Agrochemical active-herbicides;
Water-immiscible solvent-methyl or ethyl ester of vegetable oil; -and-
Agrochemical target-undesired plant growth.
Priority
Receipt is acknowledged of papers submitted under 35 U.S.C. 119(a)-(d), which papers have been placed of record in the file.
Declaration Filed Under § 1.132
The declaration filed on 06 November 2025 by Applicant is acknowledged. The declaration is addressed in the response to Applicant’s traverse below.
New Objections/Rejections
Claim Rejections - 35 USC § 112
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 9 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 9 depends from claim 8. Claim 8 recites that the water-immiscible solvent is selected from the group consisting of “hydrocarbon solvents…methyl-or ethyl esters of vegetable oils and mixtures thereof”. However, claim 9 expands the water-immiscible solvent to those having a water-solubility of up to 10 g/l at 20 °C. As evidenced by US 2008/0248120, dimethicone is a solvent [0018]. As evidenced by Pubchem, dimethicone is immiscible with water (pg. 6). As such, claim 9 fails to further limit claim 8 by expanding the water-immiscible solvent to species which are not “hydrocarbon solvents…methyl-or ethyl esters of vegetable oils and mixtures thereof”. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) 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.
Claims 1, 3, 4, 6-9, 11 & 12 are rejected under 35 U.S.C. 103 as being unpatentable over Sixl [(US 6,479,432; Published: 11/12/2002); as evidenced by Dieker (US 2021/0246282; Published: 08/12/2021)].
*Claim 1 is interpreted as thickener not being present. Support for this interpretation is in the Examples of the specification and the disclosure that “[i]n one embodiment, the agrochemical formulation does not contain a thickener” (pg. 14).
With regard to claims 1 a), 8, 9 & 11, Sixl teaches organic solvents in an amount from 5 to 95% by weight (col. 18, ll. 1-5). Sixl teaches the active compounds are dissolved in the organic solvent/component c) which may be toluene and xylenes (water immiscible solvents), as such the organic solvent is reasonably the continuous phase (col. 10, ll. 45-60; Sixl’s claim 1). With regard to claim 1b), Sixl teaches the sulfonylureas are in suspended form and are particles with sizes (abstract; col. 16, ll. 5-10). With regard to claim 1 c), Sixl teaches the water content is “very particularly preferably from 0 to 1% by weight” with water in a “dissolved form” (i.e. emulsified water droplets; col. 3, ll. 50-55; col. 15, ll. 60-end). With regard to claim 1, Sixl teaches the formulations can be prepared without component f) (i.e. without thickener/thixotrophic agent) and that they are sufficiently stable (col. 15, ll. 1-5). With regard to claim 3 & 7, Sixl teaches the mean particle sizes of the solid sulfonylurea/herbicide are generally advantageous in a size range of “in particular from 1 to 5 µm” (abstract; col. 16, ll. 5-10). With regard to claim 4, Sixl teaches inclusion of nonionic surfactants which are ethoxylated fatty alcohols having from 1 to 100 EO blocks with ethoxylated fatty alcohols being disclosed as dispersant by the instant specification (instant specification-pg. 10; Sixl’s claim 15). With regard to claim 6, Sixl teaches inclusion of nonionic surfactants which are condensates of EO/PO block copolymers and ethylenediamine which are sold under the tradename Synperonic T 908 (col. 13, ll. 45-55). As evidenced by Dieker, Synperonic T908 is advertised to be a versatile water-soluble oil-in-water emulsifier [0169]. With regard to claims 8 & 9, and the elected species, Sixl teaches the solvent may be rapeseed oil fatty acid (C1-C4)-alkyl esters (i.e. comprising methyl and ethyl esters of rapeseed oil; Sixl’s claim 15). With regard to claim 12, Sixl teaches the suspension comprises sulfonylureas/active agent in an amount of 0.1 to 50% by weight (Sixl’s claim 2).
While there is not a single example comprising each of the recited reagents, the agrochemical formulation reagents including water-immiscible solvent, agrochemical active/herbicides, water droplets, dispersant, oil-in-water emulsifier, and herbicides are included among short lists of reagents. It would have been obvious to one of ordinary skill in the art at the time of the instant invention to combine the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results.
With regard to the recited particle sizes of agrochemical active particles, water solubility of the water-immiscible solvent, and the amount of water immiscible solvent, and agrochemical active/sulfonyl urea; Sixl teaches these parameters with values which fall within or overlap with the claimed ranges. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Sixl (as evidenced by Dieker) as applied to claims 1, 3, 4, 6-9, 11 & 12 above, and further in view of Miles (US 7,476,646; Published: 01/13/2009).
*Claim Interpretation: As above.
The teachings of Sixl are described above. In brief, Sixl teaches the water is dissolved and the suspension is stable (abstract; col. 15, ll. 60-65).
Sixl does not teach the size of the water droplets.
In a related field of invention, Miles teaches agricultural promoters (title). Miles teaches their formulations comprise sulfonylureas (col.5, ll. 60-end). Miles teaches their formulation is an emulsion and “[t]o enhance stability, the particle size of the emulsion particles may be reduced by techniques known in the art such as shearing..” (col.3, ll. 60-end) “[T]he particle size of the emulsion is preferably reduced such that separation will be slowed. Particle sizes less than 10 microns are preferred, and in general the smaller the particle the slower the separation rate” (col. 5, ll. 1-10).
The Supreme Court in KSR International Co. v. Teleflex Inc., 550 U.S. 398, 127 S. Ct. 1727, 82 USPQ2d 1385, 1395-97 (2007) identified a number of rationales to support a conclusion of obviousness which are consistent with the proper “functional approach” to the determination of obviousness as laid down in Graham. The key to supporting any rejection under 35 U.S.C. 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 U.S.C. 103 should be made explicit.
Exemplary rationales that may support a conclusion of obviousness include:
(A) Combining prior art elements according to known methods to yield predictable results;
(B) Simple substitution of one known element for another to obtain predictable results;
(C) Use of known technique to improve similar devices (methods, or products) in the same way;
(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
(E) “Obvious to try” – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art;
(G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention.
Note that the list of rationales provided is not intended to be an all-inclusive list. Other rationales to support a conclusion of obviousness may be relied upon by Office personnel.
Here, at least rationale (G) may be employed in which it would have been prima facie obvious to the ordinary skilled artisan at the time of filing to have adjusted the size of the water droplets in Sixl’s suspension to be less than 10 microns as taught by Miles because Sixl and Miles are directed to agrochemical formulations comprising sulfonylureas. The ordinary skilled artisan would have been motivated to do so, in order to promote stability and reduced rate of separation by providing the suspension with particles sizes of 10 microns or less.
With regard to the recited size of the water droplets, the combined teachings of Sixl and Miles suggest this parameter with values which fall within the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Response to Arguments
Applicant argues their invention is an oil dispersion free of thickener; Applicant argues Palma is an oil dispersion which contains low amount of water but the sole working Example is water-free (reply, pg. 4-5). Applicant argues it is incorrect to assume that the water is in the form of emulsified droplets, the working Example did not articulate the sequence of adding reagents at paragraph [0474], and when Declarant attempted to reproduce Example C of Palma macroscopic aggregates formed and settled (reply, pg. 5-6; Declaration-pg. 2 & 3). Applicant further argues their Comparative formulations at pg. 29 of the specification show the absence of water results in a reduction in viscosity (reply, pg. 6). Applicant argues increased viscosity and reduced phase separation when water is emulsified into a continuous oil phase is unexpected (Declaration- pg. 3). In the traverse of claim 3, Applicant argues Palma in view of Castelani does not overcome Palma’s deficiencies (reply, pg. 8). In the traverse of the rejection of claim 10, Applicant argues Palma in view of WO ‘507 does not overcome Palma’s deficiencies (reply, pg. 8-9).
Applicant’s arguments have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant argues the application is condition for allowance and requests claims 15 and 16 be rejoined (reply, pg. 9).
This is not persuasive. The claims are not in condition for allowance and rejoinder of claim 15 and 16 is premature based upon the above rejections 35 USC 103(a).
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LORI K MATTISON whose telephone number is (571)270-5866. The examiner can normally be reached 9-7 (M-F).
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/LORI K MATTISON/Examiner, Art Unit 1619
/NICOLE P BABSON/Primary Examiner, Art Unit 1619