DETAILED ACTION
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 .
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lindner et al. (US20100160168) and Formstone et al. (US20070179077), Pullen et al. (US20080214400), and as evidenced by/taught by Canola (https://www.canolacouncil.org/canola-watch/2018/05/30/tank-mixes-of-herbicides-and-insecticides/#:~:text=Add%20any%20wettable%20powders%2C%20water,sure%20they're%20well%20mixed), and Grzmil et al. (Industrial & Engineering Chem. Res., 2001, 41(2), 139-144), and British Columbia (Ministry of Agri., published 12/2015).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claim 20, Lindner teaches a homogenous stable liquid agrochemical concentrate formulations that are useful as tank mix adjuvants (abstract). Lindner teaches that suitable ester oils include esters of C1 to C8 alcohols with C8 to C22 fatty acids and mixtures of these as Lindner states and/or in their listing of these oils ([0053]; abstract). Lindner further teaches the agrochemical concentrate formulation comprising a stabilizing surfactant, based on non-ionic and anionic surfactants (abstract), and Lindner teaches wherein the nonionic surfactants include the claimed ethoxylated fatty alcohols, and specifically teaches using oil soluble surfactant, C12/15 alcohol 4-ethoxylate, nonionic surfactant, Synperonic A4, ex Uniqema (which only differs from the now claimed alcohol ethoxylated 6 POE in that it contains 4 POE groups instead of the now claimed 6 POE groups) and that oil compatible surfactants include the claimed anionic surfactants, e.g. alkyl benzene sulfonates (see entire document; e.g. abstract; claims; [0050]; [0097]; [0018]; [0053-0054]; [0062]; [0069]; [0135]; [0116-0117]; [0015]; [0090]; [0092]; [0094]; [0059]; examples; [0118]; [0043-0050]; [0015-0041]), which read on the claimed composition consisting of at least one anionic surfactant selected from those listed in the instant claims, e.g. alkyl benzene sulfonates, at least one nonionic surfactant, e.g. the claimed C12/15 alcohol 4-ethoxylate, nonionic surfactant, Synperonic A4, ex Uniqema, and wherein the composition further comprises ester oils (Lindner teaches suitable ester oils including fatty acids, for example methyl, ethyl, propyl, and/or 2-ethylhexyl esters of lauric, myristic, palmitic acid, i.e. the claimed methyl, ethyl and propyl (which is a genus which includes the claimed isopropyl) esters of lauric acid, e.g. methyl laurate, ethyl laurate, and propyl laurate (which includes the claimed isopropyl laurate) are preferred ([0053])), water ([0018]), and the electrolyte agrochemicals of Lindner, which they exemplify can be ammonium polyphosphate and/or ammonium or alkali metal citrates, ammonium sulfate, etc. ([0099-0104]), reads on the claimed additives, specifically ammonium or alkali citrates and/or ammonium polyphosphates which are electrolyte agrochemicals of Lindner are also known effective complexing agent in agrochemical formulations as is evidenced by Grzmil (see entire document; e.g. Abstract; pg. 139, right col. Paragraph bridging to pg. 140, left col.; pg. 140, left col. first 3 full paragraphs) and are acidifiers since British Columbia evidences that ammonium sulfate is the most acidifying nitrogen fertilizer, and ammonium sulphate is effective in acidifying small areas of high pH soils, especially when applied in bands for row crops (Ammonium Sulphate section, page 2). Therefore, Linder teaches wherein their electrolytes are also an acidifier such as ammonium sulfate as an additive in instant claim 1, and as such the electrolytes of Lindner still read on the claimed additives included in claimed composition.
Regarding claim 20, Lindner teaches that the oil (i.e., alkyl ester of an alkyl acid) will form 0.5 to 50% by weight of the total concentrate composition (i.e., liquid agricultural adjuvant) which reads on the claimed amounts of isopropyl myristate and/or the at least one alkyl (C1-C8) ester of an alkyl(C12 to C16) acid ([0054]; [0035]; Claims; [0005]). Lindner further teaches that their composition can contain 1 to 25% by weight of nonionic and anionic surfactants which read on the total amounts of the anionic and nonionic surfactants claimed, which reads on the total amounts of the claimed anionic surfactants and nonionic surfactant, (specifically sodium dodecyl benzene sulfonate which is taught by Lindner and sodium lauryl ether sulfate, and alcohol ethoxylated 6 POE which are instantly claimed) ([0038]; [0094]; [0035]; [0005]). Lindner further teaches overall the total amount of water present is generally desirably from 15 to 35% by weight of the total formulation which reads on the amounts claimed (Claims; [0035]; [0095-0096]), and wherein their electrolytes which read on the claimed additives as discussed above are present in amounts of from 5 to 50% by weight ([0035]) which together with the water reads on the amounts of water and additive claimed. The implicit weight percent overlaps with the weight percent of the instant claims. According to the MPEP 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) Ranges that touch at one point overlap (MPEP 2144.05).
Regarding claim 20, Lindner teaches wherein the at least one anionic surfactant comprises the claimed alkylbenzene sulfonates, specifically dodecyl benzenesulfonates, which would include the claimed calcium dodecylbenzene sulfonate and sodium dodecylbenzenesulfonates, and Lindner teaches wherein the at least one nonionic surfactant is/can be the claimed ethoxylated fatty alcohols, and specifically teaches using oil soluble surfactant, C12/15 alcohol 4-ethoxylate, nonionic surfactant, Synperonic A4, ex Uniqema which only differs by 2 POE groups as discussed above (see entire document; e.g. abstract; claims; [0050]; [0097]; [0018]; [0053-0054]; [0062]; 0069]; [0135]; [0116-0117]; [0015]; [0090]; [0092]; [0094]; [0059]; examples; [0118]; [0043-0050]; [0015-0041]), and the electrolyte agrochemicals of Lindner, which they exemplify can be ammonium polyphosphate and/or ammonium or alkali metal citrates, ammonium sulfate, etc. ([0099-0104]), reads on the claimed additives, specifically ammonium or alkali citrates and/or ammonium polyphosphates which are electrolyte agrochemicals of Lindner are also known effective complexing agents in agrochemical formulations as is evidenced by Grzmil (see entire document; e.g. Abstract; pg. 139, right col. Paragraph bridging to pg. 140, left col.; pg. 140, left col. first 3 full paragraphs) and the electrolytes of Lindner are also acidifiers since British Columbia evidences that ammonium sulfate is the most acidifying nitrogen fertilizer, and ammonium sulphate is effective in acidifying small areas of high pH soils, especially when applied in bands for row crops (Ammonium Sulphate section, page 2). and as such the electrolytes of Lindner still read on the claimed additives included in claimed composition.
Ascertainment of the Difference Between Scope the Prior Art and the Claims
(MPEP §2141.02)
Regarding claim 20, Lindner does not specifically teach wherein their oil/fatty acid ester oil is and/or includes isopropyl myristate or wherein the composition has the claimed flash point higher than 100 °C, or wherein the alcohol ethoxylate is the specifically claimed alcohol ethoxylated 6 POE or wherein the anionic surfactant includes sodium lauryl ether sulfate. However, these deficiencies in Lindner are addressed by Formstone and Pullen.
Formstone teaches that it was beneficial to use isopropyl myristate all of which have a density of 0.85 g/ml and a flash point greater than 110° C and are particularly suitable as solvents for antifoaming/adjuvants for agrochemical compositions and that they appear virtually miscible (or at least very finely dispersed) in an agrochemical concentrate composition ([0044]; [0043]; [0047-0049]; [0051]; [0013-0014]; [0017-0021]; example; claims). Formstone further teaches wherein suitable emulsifying agents include the claimed alkaline metal alkylbenzene sulfonates, specifically sodium dodecyl benzene sulfonate and they specifically teach/exemplify the claimed sodium dodecyl benzene sulfonate/sulphonate ([0050]; [0056]). Formstone also teaches wherein the emulsifying agents include the claimed alcohol ethoxylates are specifically the claimed alcohol ethoxylated 6 POE, e.g. RENEX 36, blended with the other surfactants they disclose, e.g. alkaline metal alkylbenzene sulfonates. Formstone also teaches wherein antifoaming agents which are some of the claimed additional components are included in their compositions to help to control foaming, etc. and these antifoaming agents are preferably added to the composition in solvents, specifically isopropyl myristate (see entire document; claims; [0019-0028]; [0043-0044]).
Regarding claim 20, Lindner and Formstone together do not teach wherein the isopropyl myristate which is at least one C1-C8 ester of alkyl (C12-C16) acid, and further wherein the methyl laurate and isopropyl laurate of Lindner have the claimed paraffinic wax dissolution capability of between 2 to 20 wt% at 25 °C. However, this is a property of these oils at 25° C and it is known, "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
Regarding claim 20, Pullen teaches adjuvant compositions for agricultural use which comprise as anionic surfactants sodium lauryl ether sulfate and can also comprise sodium alkylaryl sulfonates, e.g. sodium dodecylbenzene sulfonate/sulphonate (see [0018]; [0035])
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art to substitute the isopropyl myristate of Formstone for the fatty acid ester containing liquid concentrate composition of Lindner in the claimed amounts which are taught by Lindner to be effective amounts for forming liquid concentrate adjuvants for agrochemical formulations in order to develop the instantly claimed liquid adjuvant concentrate composition for agrochemical formulations because Formstone teaches that isopropyl myristate has the claimed flash points and has the claimed paraffinic wax dissolution capability and is useful for formulating liquid agricultural compositions and is particularly suitable as a solvent for antifoaming/adjuvants for agrochemical compositions and it appears virtually miscible (or at least very finely dispersed) in an agrochemical concentrate composition and as such would be obvious to choose isopropyl myristate to use in the composition of Lindner in order to form the instantly claimed composition.
It also would be obvious to substitute and/or add-in the isopropyl myristate of Formstone as the oil component and/or an additional fatty acid oil component/“biologically efficacious oil” in Lindner as per claim 10 and the other claims as is instantly claimed because the claimed isopropyl myristate is known to be very effective for formulating agricultural compositions and it has the desired flash point and is particularly suitable as a solvent for antifoaming/adjuvants for agrochemical compositions and it appears virtually miscible (or at least very finely dispersed) in an agrochemical concentrate composition and as such would be obvious to choose isopropyl myristate to use in the composition of Lindner in order to form the instantly claimed composition.
It also would have been obvious to optimize the amount of water and other additives and isopropyl myristate to read on the claimed amounts because the prior art Lindner teaches amounts of their ester oils include esters of C1 to C8 alcohols with C8 to C22 fatty acids, which broadly includes isopropyl myristate, overlap those instantly claimed and Lindner teaches wherein their amounts of water and other compounds, e.g. electrolytes (which read on/are the claimed acidifiers and/or complexing agents as evidenced by Grzmil and British Columbia) are also used in amounts which overlap those instantly claimed. It would be obvious to optimize the amounts of isopropyl myristate which is broadly taught by Lindner, and expressly taught by Formstone, and the amounts of water and other compounds, e.g. acidifiers, complexing agents, antifoams, etc. to read on those instantly claimed because these amounts are broadly taught by Lindner and 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), 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.").
It also would have been obvious to one of ordinary skill in the art to optimize the amounts of the anionic and nonionic surfactants to fall within the specifically claimed ranges of each that are instantly claimed because Lindner teaches that using blends of the claimed anionic and nonionic surfactants are useful for formulating adjuvants for agricultural compositions and Lindner teaches using the surfactants in total amounts which overlap the instantly claimed total amounts of surfactants and as such it would be obvious to optimize the amount of anionic surfactant and the amount of non-ionic surfactant as taught by Lindner in effort to form the most effective agricultural oil adjuvant for formulating agrochemical liquid compositions for application to crops. 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), 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.").
It also would have been obvious to select the specific sodium dodecylbenzene sulfonate and sodium lauryl sulfate combination as the anionic surfactant for use in Lindner because Lindner teaches that dodecylbenzene sulfonates are useful surfactants for use in their invention, Formstone teaches the claimed sodium dodecylbenzene sulfonate is a useful anionic surfactant for formulating with isopropyl myristate in forming adjuvants for agrochemicals, and Pullen teaches that it was known to form agricultural adjuvants which comprise sodium dodecylbenzene sulfonate and sodium lauryl sulfate combination as anionic surfactants for oil based agricultural adjuvants. It would be obvious to select known effective surfactants for formulating the claimed adjuvants which are known to be compatible with the claimed components as is taught by Lindner, Formstone, and Pullen.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that 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, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments/Remarks
Applicant’s amendments to the claims have overcome the previous claim objections, and applicants submission of terminal disclaimer and its approval on 03/04/26 has overcome the previous double patenting rejection. Applicant’s request for rejoinder is acknowledged for the added claims which were previously withdrawn for being directed to a non-elected invention.
Applicant’s amendments to the claims have also prompted the new grounds of rejection under 103 presented herein. Applicants argue that their amendments to their claims exclude Lindner as prior art as applicant’s consisting of language excludes the electrolytes of Lindner because applicant’s have excluded chelates from the claimed additives. The examiner respectfully disagrees that Lindner does not qualify as prior art because applicants additive scope still includes complexing agents and acidifiers and as evidenced by Grzmil and British Columbia, the electrolytes of Lindner are known to be complexing agents and also acidifiers which applicants have not excluded from their claimed additives. Thus, Lindner in view of the combined references still reads on the claimed invention for the reasons discussed above.
Thus, from the teachings of the references, it is apparent that 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, as evidenced by the references, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Erin E Hirt whose telephone number is (571)270-1077. The examiner can normally be reached 10:30-7:30 ET M-F.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue X Liu can be reached at 571-272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ERIN E HIRT/Primary Examiner, Art Unit 1616