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 .
Claims Status
Receipt of Remarks/Amendments filed on 8/19/2025 is acknowledged. Claims 1-5, 12-15, 21-30 are currently pending. Claims 13 and 15 have been withdrawn. Accordingly, claims 1-5, 12, 14, 21-30 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Rejection(s) not reiterated from the previous Office Action are hereby withdrawn.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.
New Claim Objection(s) / Rejection(s)
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 23, 24, 27, 28, 29 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claims 23-24 and 28 recite the broad recitation “alkyl” in line 3 of the claims, and the claims also recites “(C6-C18)” in parenthesis which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claims 27 and 29 are included in the rejection as they depend on a rejected base claim and do not clarify the issues discussed above.
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 1-5, 12, 14, 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Akio et al. (JPS60224602A; 1985-11-09) (cited in IDS filed 4/13/2023; also see attached google translated copy) in view of Vizag (Vizag Chemicals International, 11-14-2018).
Akio throughout the reference teaches surface active agent for agricultural chemical preparation. The surface active agent improved stable compatibility in manufacturing of agricultural chemical preparation comprising a glyceryl group containing compound. Akio teaches a polyglyceral alkylamine surface active agent represented by formula I below:
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Wherein R can be alkyl, alkenyl, alkylphenyl, alkylamine, or alkylthiol; X is glyceral; Y is oxyalkylene; I is 1-20; m is 0-20; n is 1 or 2. (see: Abstract). Further, Akio teaches R can be a linear or branched alkyl group or alkenyl group having 8 to 22 carbon atoms (saturated or unsaturated fatty acid). The agrochemical active agent includes glyphosate. Akio discloses R can be oleyl amine. Regarding the claimed limitation wherein the composition is free of a fertilizer, Akio teaches the invention pertains to surfactants for agricultural preparations for liquid preparations or liquid fertilizers. It exhibits excellent stable compatibility in the formulation of agricultural preparations for liquid agents (in the case of agricultural chemicals) or liquid fertilizers (in the case of fertilizers). The surfactant according to the invention is used when formulating a drug as a liquid agent or liquid fertilizer using a water-soluble solvent as a solvent. Akio discloses glyphosate as active agricultural chemicals or fertilizers such as ammonium sulfate and ammonium nitrate which can be used. Therefore, Akio teaches the use of fertilizers as optional and does not require them to be in the composition. (see: Abstract; Claims; Entire document; also see google translated copy ). Akio also teaches the amount of surfactant used is 1% to 20% by weight in the formulation, which overlaps the claimed concentration of the surfactant (see page 3 of google translated copy).
The teachings of Akio have been set forth above.
While Akio expressly discloses the alkylamine being oleyl amine, Akio does not expressly teach the alkylamine being tallow amine as recited in the elected species of the claimed surfactant. However, Vizag cures this deficiency.
Vizag teaches that fatty amines like coco amine, oleyl amine and tallow amine have many uses, primarily as nonionic surfactants in various formulations including as adjuvants in agrochemical formulations.
It would have been prima facie obvious to one of ordinary skill in the art before the effective
filing date of the claimed invention to have modified Akio to incorporate the teachings of Vizag and include specifically tallow amine as the alkyl amine in the surfactant of Akio. As discussed supra, Akio teaches the surfactant comprises an alkyl amine and expressly discloses an oleyl amine polyglyceral surfactant. Vizag teaches that fatty amines like coco amine, oleyl amine and tallow amine have many uses, primarily as nonionic surfactants in various formulations including as adjuvants in agrochemical formulations. Thus, it would have been obvious to one of ordinary skill in the art to substitute an oleyl amine with tallow amine as a person with ordinary skill has good reason to pursue known options within his or her technical grasp. see MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
While Akio does not expressly disclose the elected species of the claimed surfactant (e.g., wherein R = Tallow, which is predominantly (>90%) C16 and C18 hydrocarbons, wherein hydrocarbons are linear and include both saturated and unsaturated portions and x + y = 5 (i.e., glyceral)), as discussed supra, Akio teaches R in the formula I can be alkylamine and R can be a linear or branched alkyl group or alkenyl group having 8 to 22 carbon atoms (saturated or unsaturated fatty acid). X (i.e., glyceral) can range from 1-20. The prior art teaches a compound which encompasses the specific species recited in the instant claim. Therefore, all of the claimed elements were known in the prior art 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 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).
Regarding the claimed amount of the glyphosate, it would have been prima facie obvious to one of ordinary skill in the art to optimize the amount of glyphosate in the formulation. Akio teaches glyphosate is used as an agrochemical pesticidal active ingredient and one skilled in the art would have found it obvious to manipulate the amount of glyphosate and determine an amount which provides an optimal and/or the desired pesticidal activity, based on for example the severity of pests and/or the area being treated. 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 references, 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.
Claims 23, 24, 28 are rejected under 35 U.S.C. 103 as being unpatentable over Akio et al. (JPS60224602A; 1985-11-09) (cited in IDS filed 4/13/2023; also see attached google translated copy) in view of Vizag (Vizag Chemicals International, 11-14-2018) as applied to claims 1-5, 12, 14, 21-22 above, and further in view of Brigance (US20070049498A1) (previously cited).
The teachings of Akio and Vizag have been set forth above.
The above cited references do not teach the composition further comprising a second surfactant as recited in claims 23, 24 and 28. However, Brigance cures this deficiency.
Brigance teaches agricultural composition comprising at least one amine ethoxylate which enhances the performance of agrochemicals, reduces aquatic toxicity, reduces eye irritation and improves compatibility with other pesticides. Brigance specifically teaches alkyl amine ethoxylates (e.g., tallow amine ethoxylate) which read on the claimed alkylamine alkoxylates. Brigance also teaches glyphosate as an agrochemical active. (see e.g. abstract; claims; para 0028, 0041; example 1).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the teachings of Akio and Brigance and include the amine ethoxylate surfactant (e.g., tallow amine ethoxylate) taught by Brigance into the composition of Akio. One would have been motivated to do so because both references are directed to use of surfactants for enhancing agrochemical performance and both references teach use of glyphosate as an active agrochemical. Brigance provides the motivation to include an alkylamine alkoxylate such as tallow amine ethoxylate because Brigance teaches agricultural composition comprising at least one amine ethoxylate which enhances the performance of agrochemicals, reduces aquatic toxicity, reduces eye irritation and improves compatibility with other pesticides. As a general principle it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose, the idea of combining them flows logically from their having been individually taught in the prior art. See In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) MPEP 2144.06.
From the combined teaching of the cited references, 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.
Claims 25-27 and 29-30 are rejected under 35 U.S.C. 103 as being unpatentable over Akio et al. (JPS60224602A; 1985-11-09) (cited in IDS filed 4/13/2023; also see attached google translated copy) in view of Vizag (Vizag Chemicals International, 11-14-2018) and Brigance (US20070049498A1) (previously cited) as applied to claims 1-5, 12, 14, 21-24, 28 above, and further in view of Shroff (US 8,815,773 B2; Aug. 26, 2014).
The teachings of Akio, Vizag and Brigance have been set forth above.
The above cited references do not teach the composition further comprising an alkyl EO-PO block copolymer. However, Shroff cures this deficiency.
Shroff teaches herbicidal formulation comprising glyphosate and oryzalin along with polyalkylene oxides and their copolymers such as alkyl EO/PO copolymer. It was found that polyalkylene oxides and their copolymers such as alkyl EO/PO copolymer particularly facilitated the handling ease of the formulations. (see e.g., Abstract; Examples; col. 7, line 9-17).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the teachings of the cited references and include alkyl EO/PO copolymer in the composition of Akio. One would have been motivated to do so because both Shroff and Akio teach agrochemical compositions comprising glyphosate and Shroff teaches it was found that polyalkylene oxides and their copolymers such as alkyl EO/PO copolymer particularly facilitated the handling ease of the formulations. Therefore, one skilled in the art would have found it obvious to further include alkyl EO/PO copolymers in the agrochemical composition of Akio.
From the combined teaching of the cited references, 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.
Response to Arguments
Applicant argued Akio expressly requires that a fertilizer be used in its composition and the amended claims make clear that claimed composition is free of a fertilizer.
In response, as discussed supra, Akio teaches the invention pertains to surfactants for agricultural preparations for liquid preparations or liquid fertilizers. It exhibits excellent stable compatibility in the formulation of agricultural preparations for liquid agents (in the case of agricultural chemicals) or liquid fertilizers (in the case of fertilizers). The surfactant according to the invention is used when formulating a drug as a liquid agent or liquid fertilizer using a water-soluble solvent as a solvent. Akio discloses glyphosate as active agricultural chemicals or fertilizers such as ammonium sulfate and ammonium nitrate which can be used. Therefore, Akio teaches the use of fertilizers as optional and does not require them to be in the composition.
Applicant argued the art does not teach the claimed components in the now claimed specific amounts.
In response, as mentioned in the modified rejections above, Akio also teaches the amount of surfactant used is 1% to 20% by weight in the formulation, which overlaps the claimed concentration of the surfactant (see page 3 of google translated copy). Regarding the claimed amount of the glyphosate, it would have been prima facie obvious to one of ordinary skill in the art to optimize the amount of glyphosate in the formulation. Akio teaches glyphosate is used as an agrochemical pesticidal active ingredient and one skilled in the art would have found it obvious to manipulate the amount of glyphosate and determine an amount which provides an optimal and/or the desired pesticidal activity, based on for example the severity of pests and/or the area being treated. 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).
Applicant argued the newly added claims included additional surfactant and alkyl EO-PO block copolymer which are not taught by the cited art. It is also argued that the alkyl EO-PO block copolymer is generally shown to produce superior and unexpected results in the examples.
In response, applicant’s attention is respectfully drawn to the new 103 rejections wherein Brigance and Shroff render obvious the inclusion of the additional surfactant and alkyl EO-PO copolymer. Regarding the unexpected results, firstly the examiner argues that none of the independent claims require an alkyl EO-PO copolymer. Further, the instant claims require glyphosate in combination with the surfactant. However, none of the examples which discuss synergy between alkyl polyglyceramine and alkyl EO-PO block copolymer use glyphosate. The examples in specification use Tebuconazole and Bifenthrin. Thus, applicant arguments and disclosed results are not commensurate in scope with the claims as the claims require glyphosate.
Conclusion
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.
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/A.S/ Examiner, Art Unit 1616
/ERIN E HIRT/ Primary Examiner, Art Unit 1616