FINAL 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 .
Status of the Claims
This action is in response to papers filed 12/15/2025 in which claims 7, 16-18, and 28 were canceled; claims 23-25 were withdrawn; claim 1 was amended; and claims 29-31 were newly added. All the amendments have been thoroughly reviewed and entered.
Claims 1-6, 8-15, 19-22, 26-27, and 29-31 are under examination.
Withdrawn Objections/Rejections
The Examiner has re-weighted all the evidence of record. Any rejection and/or objection not specifically addressed below is hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set of rejections and/or objections presently being applied to the instant application.
New Objections
Claim Objections
Claim 29 is objected to because of the following informalities: please add “pbw” after “20”. Appropriate correction is required.
Claim 31 is objected to because of the following informalities: please add “pbw” after “4” and also, add a space between “and” and “a” in “anda”. Appropriate corrections are required.
New Rejection
Necessitated by Applicant’s Claim Amendments
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 1-6, 8-15, 19-22, 26-27, and 29-31 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.
Regarding claim 1, the recitation of “the water conditioning component is added in an amount to condition water and inhibit hydration of the incompletely hydrated water-soluble polymer” renders the claim indefinite because earlier in the claim, it recites “based on an amount of the liquid medium, from 20 to 80 pbw a water conditioning component,” and thus, it is unclear how the water conditioning compound can be added in “an amount,” meaning any amount, where the earlier required that the water conditioning component is from 20 to 80 pbw. Furthermore, it is also unclear where water conditioning component “is added” in said amount, as the claim does not clearly define whether the water conditioning component is part of the drift control component or the agricultural composition. Clarification in claim 1 is required. Claims 2-6, 8-15, 19-22, 26-27, and 29-31 are also rejected as they depend directly or indirectly from indefinite claim 1.
As a result, claims 1-6, 8-15, 19-22, 26-27, and 29-31 do not clearly set forth the metes and bounds of patent protection desired.
Maintained-Modified Rejections
Modification Necessitated by Applicant’s Claim Amendments
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.
Claim(s) 1-6, 8-15, 19-22, 26, and 29-31 is/are rejected under 35 U.S.C. 103 as being unpatentable over McKnight et al (7 January 2016; US 2016/0000070 A1) in view of Di Modugno et al (11 August 2016; US 2016/0227765 A1).
Regarding claim 1, McKnight teaches agricultural composition comprising an incomplete hydrated water-soluble polymer suspended in a liquid medium, a suspending agent in an amount effective to impart shear thinning properties to the composition, a glycol or glycerol, a surfactant and choline chloride (abstract; [0003], [0009], [0010], [0013]-[0030], [0031]-[0034], [0036], [0037], [0040], [0041], [0049], [0053], [0055]-[0111], [0157]-[0175]; clams 1-10 and 15).
McKnight teaches the agricultural composition contains 10 pbw to 40 pbw of the liquid medium, 15 pbw to 60 pbw of the incomplete hydrated water-soluble polymer, 0.1 pbw to 10 pbw of the suspending agent, 2 pbw to 40 pbw of glycol or glycerol, and 20 pbw to 60 pbw of choline chloride ([0024]-[0025], [0055]-[0111], [0164]-[0175]). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the amounts of liquid medium, incomplete hydrated water-soluble polymer, suspending agent, glycol or glycerol, and water conditioning component in the agricultural composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
However, McKnight does not teach the potassium citrate and citric acid of claim 1.
Regarding the potassium citrate and citric acid of claim 1, Di Modugno teaches a stable aqueous agrochemical adjuvant concentrate with superior water conditioning properties comprising a mixture of potassium salts including tri-potassium citrate (abstract; [0017]-[0037] and [0054]-[0082]; Table 1; claims 1-8). Di Modugno teaches the aqueous adjuvant concentrate further contains an anti-drift agent, a suspending agent, surfactants and a pH adjuster such as citric acid ([0020]-[0037]). Di Modugno teaches the aqueous agrochemical adjuvant concentrate comprises about 15 wt% to about 45 wt% of the mixture of potassium salts containing from 1 to 4 part by weight (pbw) of di-potassium phosphate; from 0.5 to 1.5 pbw of potassium nitrate; and from 0.5 to 1.5 pbw of tri-potassium citrate ([0017]-[0018] and [0052]-[0060]; claim 1). Di Modugno teaches the aqueous agrochemical adjuvant concentrate contains 5 wt% of a 50 wt% water solution of citric acid ([0064]-[0082]; Table 1).
It would have been obvious to one of ordinary skill in the art to include the citric acid and the mixture of potassium salts including tri-potassium citrate of Di Modugno to the agricultural composition of McKnight, and produce the claimed invention. One of ordinary skill in the art would have been motivated to do so because McKnight and Di Modugno are commonly drawn to an agriculture composition comprising an anti-drift component, a suspending agent, a surfactant and water conditioning component, and Di Modugno provided the guidance for including citric acid and a mixture of potassium salts including tri-potassium citrate to the agricultural composition of McKnight, as the addition of citric acid adjust the pH of the agriculture composition to a desired pH from 7.0 to 8.0, and the mixture of potassium salts including tri-potassium citrate provides a resultant stable agricultural composition with superior water conditioning properties (Di Modugno: abstract; [0016]-[0017], [0035], and [0040]), which also are the objectives of McKnight to provide an agricultural composition with storage stability and water conditioning properties (McKnight: [0004], [0192] and [0193]). Thus, "[i]t 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.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
With respect to claimed property of “the composition is initially flowable and exhibits a viscosity ranging from 175 cP to less than 4000 cP and is flowable after storage for 1 to 2 weeks at temperatures ranging from room temperature of 20°C to 54°C” as recited in claim 1, it is noted McKnight teaches that the agriculture composition containing a suspending agent is flowable, as the composition exhibits non-Newtonian shear thinning viscosity and the composition also has good storage stability for 3 months at room temperature (McKnight: abstract; [0003], [0006]-[0010], [0013]-[0030], [0031]-[0034], [0036], [0037], [0040], [0041], [0049], [0052]-[0053], [0068]-[0095], [0136]-[0165], [0172], and [0192]-[0193]; clams 1-10 and 15). Furthermore, like McKnight, Di Modugno also teaches a flowable agriculture composition containing suspending agent (Di Modugno: Abstract; [0002], [0017]-[0037], [0040], [0043], [0059], [0051], [0054]-[0060] and [0091]; Table 1; claims 1-8), wherein Di Modugno provided the guidance for including citric acid and a mixture of potassium salts including tri-potassium citrate to the agriculture composition of McKnight so as to provide a resultant agriculture composition with good storage stability and superior water condition properties (see 103 rejection, pages 5-6 of this office action). Di Modugno showed in Table 1 that the agriculture composition containing suspending agent (ATTAGEL 50), citric acid and the potassium salts, has a low viscosity of 2400 cP and is storage stable at freeze & thaw temperatures (see Example 2). Thus, it would have been obvious to one of ordinary skill in the art that the claimed property of “the composition is initially flowable and exhibits a viscosity ranging from 175 cP to less than 4000 cP and is flowable after storage for 1 to 2 weeks at temperatures ranging from room temperature of 20°C to 54°C” would have been implicit in the agriculture composition of McKnight in view of Di Modugno.
Regarding claims 2 and 3, McKnight teaches the composition is flowable and exhibit a viscosity of less than 1 Pa·s at a shear rate of greater than or equal 10s-1 ([0040] and [0045]-[0049]).
Regarding claim 4, McKnight teaches the suspending agent is fumed silica ([0010], [0016], [0053], [0136]-[0139] and [0149] and claim 6).
Regarding claims 5 and 6, McKnight teaches the water soluble polymer is guar or derivatized guar such as carboxymethyl guar, carboxymethylhydroxypropyl guar, cationic hydroxypropyl guar, hydroxyethyl guar, hydroxypropyl guar and hydroxybutyl guar ([0112], [0118] and [0126]).
Regarding claim 8, McKnight teaches the composition contains a pesticide active ingredient and the water-soluble polymer enhances delivery of the pesticide active ingredient from the liquid medium to a target substrate ([0013] and claim 8).
Regarding claim 9, McKnight teaches the liquid medium is water or a mixture of water and immiscible organic liquid, and the composition is in the form of an emulsion, a microemulsion, or a suspoemulsion ([0015] and [0032]).
Regarding claim 10, McKnight teaches the water-soluble polymer is selected from polyacrylamide polymers, non-derivatized guar polymers, derivatized guar polymers, and mixtures thereof, and the suspending agent is selected from fumed silicas, inorganic colloidal or colloid-forming particles, rheology modifier polymers, water-soluble polysaccharide polymers other than the non-derivatized or derivatized guar polymer, and mixtures thereof ([0016], [0098] and [0104]).
Regarding claim 11, McKnight teaches the surfactant is selected from alkoxylated alcohols, alkyl betaine, alkylamidopropyl betaines, and alkyl sultaines ([0161]).
Regarding claims 12-14, Di Modugno teaches the surfactant is selected from ethoxylated (4-8 EO) C12-C14 natural alcohol and sodium dioctyl sulfosuccinate ([0021]-[0026]).
Regarding claim 15, McKnight teaches the surfactant functions to provide biological activity in an end use application such as pharmaceutical or pesticide composition ([0060]).
Regarding claim 19, McKnight teaches the suspending agent is xanthan gum or rheozan ([0112], [0119] and [0152]).
Regarding claim 20, McKnight teaches the suspending agent is a mixture of fumed silica and clay ([0095]).
Regarding claim 21, McKnight teaches the suspending agent is a hydrophobic associative rheology modifier ([0153]).
Regarding claim 22, McKnight teaches the composition is free or substantially free of ammonium-containing compounds ([0009] and [0030]).
Regarding claim 26, McKnight teaches the composition further contains potassium phosphate (dibasic) and potassium hydrogen phosphate ([0008], [0024], [0029], [0058] and [0166]).
Regarding claims 29-31, as discussed above, McKnight teaches the agricultural composition contains 10 pbw to 40 pbw of the liquid medium, 15 pbw to 60 pbw of the incomplete hydrated water-soluble polymer, 0.1 pbw to 10 pbw of the suspending agent, 2 pbw to 40 pbw of glycol or glycerol, and 20 pbw to 60 pbw of choline chloride ([0024]-[0025], [0055]-[0111], [0164]-[0175]). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the amounts of liquid medium, incomplete hydrated water-soluble polymer, glycol or glycerol, and water conditioning component in the agricultural composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
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 was prima facie obvious to one of ordinary skill in the art before the effective filing date of Applicant’s invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Claim(s) 27 is/are rejected under 35 U.S.C. 103 as being unpatentable over McKnight et al (7 January 2016; US 2016/0000070 A1) in view of Di Modugno et al (11 August 2016; US 2016/0227765 A1), as applied to claim 1 above, and further in view of Goldblum et al (23 June 2016; US 2016/0174552 A1).
Regarding claim 27, McKnight teaches the agricultural composition comprises a suspending agent, attapulgite, a glycol or glycerol, and ethoxylate surfactant, wherein the suspending agent comprises a rheology modify polymer (abstract; [0003], [0009], [0010], [0013]-[0030], [0031]-[0034], [0036], [0037], [0040], [0041], [0049], [0053], [0068]-[0095], [0099], [0105], [0150], [0152]-[0154], [0157]-[0165] and [0172]; clams 1-10 and 15).
Goldblum teaches agriculture composition comprising attapulgite, polyethylene glycol, ethoxylated surfactant and a viscosity modulating agent such as diutan gum, wherein the composition is pourable, pumpable or sprayable. ([0005], [0009]-[0010], [0015]-,0021], [0033], [0037]-[0039], [0041]-[0042], [0083], [0100], [0120]-[0213], [0206], [0216], [0232]-[0262], [0278], [0293]-[0304]; claims 8, 37, 61, 69 and 126).
It would have been obvious to one of ordinary skill in the art to include diutan gum as one of the suspending agents and polyethylene glycol as the glycol in the agricultural composition of McKnight, and produce the claimed invention. One of ordinary skill in the art would have been motivated to do so because Goldblum provided the guidance to do so by teaching that aside from the glycol (e.g., glycerol, ethylene glycol and propylene glycol) disclosed in McKnight, polyethylene glycol is also a suitable glycol for incorporation in an agricultural composition (Goldblum: [0015], [0018], [0236], [0278]; claim 27). Furthermore, Goldblum teaches that aside from the rheology modifying polymer (e.g., cellulose polymers, acrylate, an acrylate copolymer, a carrageenan, guar gum, hydroxypropyl guar, and xanthan gum) diutan gum is also a suitable viscosity modulating agent in the agricultural composition (Goldblum: [0020], [0039], [0042], [0261]; claims 69 and 148). Thus, an ordinary artisan provided the guidance from Goldblum would have reasonably motivation to select and use polyethylene glycol as the glycol and diutan gum as one of the suspending agents of McKnight, and achieve Applicant’s claimed invention with reasonable expectation because [t]he selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). "Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle." 325 U.S. at 335, 65 USPQ at 301.).
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 was prima facie obvious to one of ordinary skill in the art before the effective filing date of Applicant’s invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments
Applicant's arguments filed 12/15/2025 have been fully considered but they are not persuasive.
Applicant argues:
“the teaching of Di Modugno does not effectively demonstrate that the stability of the composition is a result of the citric acid and/or the mixture of potassium salts. Rather, in comparing the comparative examples with the inventive examples of Di Modugno, it is not clear whether the presence of the citric acid or the mixture of potassium salts makes the compositions have flowable viscosities. Specifically, comparative examples 4 and 5, which do not include the citric acid, demonstrate that only having either the potassium nitrate or the tri-potassium citrate generates compositions with high viscosities. Comparative example 3 (CE3) demonstrates that if you do include 11 g of citric acid and the dipotassium hydrogen phosphate as the potassium salt, the composition viscosity is even higher than the comparative examples that exclude the citric acid.”
“However, in the inventive examples of Di Modugno, four variables are changed, 1) the citric acid is halved relative to CE3, 2) the dipotassium hydrogen phosphate is tripled relative to CE3, 3) the composition includes mixtures of the three potassium salts rather than one potassium salt shown in all of the comparative examples, and 4) the addition of ATTAGEL 50. Thus, in comparing the inventive examples to the comparative examples within Di Modugno, it is not clear which of the one or more of the four variables is responsible for generating a composition with lower viscosity.” (Remarks, page 10).
In response, the Examiner disagrees. As previously discussed, it is maintained that Example 2 from Table 1 of Di Modugno contains citric acid, suspending agent (ATTAGEL 50), and potassium salts, and said Example 2 has a low viscosity of 2400 cP. The difference between Example 2 and the Comparative Examples 3-5, is that Comparative Example 3 does not contain ATTAGEL 50 and tri-potassium citrate; Comparative Example 4 does not contain citric acid, ATTAGEL 50, and tri-potassium citrate; and Comparative Example 5 does not contain citric acid and ATTAGEL 50. Thus, it appears from Table 1, Example 2 has a low viscosity of 2400 cp is because of the presence of citric acid, suspending agent (ATTAGEL 50), and potassium salts (and particularly due to tri-potassium citrate). This analysis is reasonable, because Comparative Example 3 did not contain tri-potassium citrate and ATTAGEL 50 but has the highest concentration of natural polymer (HPT1 7%), thereby the viscosity is highest. Comparative Example 4 did not contain citric acid, ATTAGEL 50, and tri-potassium citrate, but had a lower concentration of natural polymer (HPT1 6%), thereby the viscosity is lower than Comparative 3, but still higher than Example 2. Comparative 5 did not contain citric acid and ATTAGEL 50, but had a lower concentration of natural polymer than Comparative Example 3 and Comparative 4 (HPT1 5%), thereby the viscosity is lower than Comparative Example 3 and Comparative 4, but still higher than Example 2. It is noted that McKnight teaches that the suspending agent plays a role in the lowering the viscosity of fully hydrated water-soluble polymer (McKnight: 0054]). From this understanding from McKnight, it appeared that Comparative Examples 3-5 have higher viscosity than Example 2, in part due to the lack of suspending agent (ATTAGEL 50) to help lower the viscosity of the fully hydrated water-soluble polymer and that the increase in viscosity of the composition is concentration dependent for the natural polymer when suspending agent is not present in the composition. Hence, Comparative Example 3 has the highest viscosity due to having the highest amount of natural polymer and lacking suspending agent.
Applicant argues:
“Di Modugno teaches using 15-45 wt% of the composition being mixed salts of potassium, as well as citric acid, the combination of which does not provide the properties of the claimed invention. Di Modugno's inventive examples include 5 g/wt% of the citric acid and 25 g/wt% of a potassium salt mixture in the composition. The mixture of the potassium salts includes: 3 pbw of K2HPO4 and 1 pbw each of the potassium nitrate and tri-potassium citrate. Even at Di Modugno's broader teaching of 15-45wt % of a mixture of potassium that includes in relative parts by weight: a. from about 1 to about 4 parts by weight of di-potassium phosphate; b. from about 0.5 to about 1.5 parts by weight of potassium nitrate; and c. from about 0.5 to about 1.5 parts by weight of tri- potassium citrate, these provided amounts do not provide the properties of the compositions as claimed. As shown in the Declaration filed concurrently herewith, herein after Declaration-3, Sample #1 includes 25 wt% of the mixture of potassium salts in the composition and includes 3 pbw of the (shown as 15%), and 1 pbw of the tri-potassium citrate and potassium nitrate (both shown as 5%). However, this composition, which uses Di Modugno's amount of potassium salts and in their relative proportions, forms a viscous gel that is not flowable and has a viscosity greater than 4000 cP.
In view of Sample #1 in Declaration-3, which is representative of DiModugno's inventive examples, there would not have been a reasonable expectation of success in forming the instantly claimed composition from the teachings of Di Modugno. Thus, Di Modugno would not provide the skilled person willing to formulate low viscosity compositions, with motivation to combine the teaching of McKnight with Di Modugno.” (Remarks, page 11).
In response, the Examiner disagrees. The Subramanian Kesavan Declaration under 37 C.F.R. §1.132 filed 12/15/2025 (hereafter as “Declaration-3”) and evidence provided therein , are considered, but found insufficient to obviate the pending 103 rejection over McKnight and Di Modugno for the reasons discussed below.
First, it is noted that 25 g/wt% of a potassium salt mixture containing 3 pbw of the potassium di-potassium phosphate, 1 pbw of the tri-potassium citrate and 1 pbw potassium nitrate, are not 15% of potassium di-potassium phosphate, 5% of the tri-potassium citrate, and 5% of potassium nitrate. Rather, it is 12% of potassium di-potassium phosphate (3 pbw of 25g/wt%), 4% of tri-potassium citrate (1 pbw of 25 g/wt%), and 4% of potassium nitrate (1 pbw of 25 g/wt%). For this reason, Applicant’s comparative examples in the Declaration-3 are deficient, as the potassium salt mixture used in Examples 1 or 2 of DiModugno was not used.
Second, Applicant alleged and the Declarant declared that Sample #1 (25SKE25-01) as shown in the Table on page 2 of Declaration-3 as being representative of DiModugno's inventive examples, is misplaced because Sample 25SKE25-01, for at least the reason that neither Example 1 or Example 2 of DiModugno contains Kelcovis DG (Diutan gum). Thus, Applicant’s comparative data in Declaration-3 did not adequately compared to the closest prior art of DiModugno (comparing to Examples 1 and 2 in Table 1 of DiModugno. See MPEP §716.02.
Third, it is noted that Sample 25SKE25-02 on page 2 of Declaration-3 appeared to be a formulation that reads on the claimed invention of claim 1, as the components and amounts of each components reads on an embodiment of the agriculture composition as recited in claim 1. Thus, this is preponderance of evidence to show that Applicant’s claimed invention as recited in claim 1 remained not adequately commensurate in scope with Applicant’s alleged formulation of 21SKE-15-01 in the Declaration-1 (previously filed 09/24/2021) that was used for showing the alleged unexpected results, as Sample 25SKE25-02 on page 2 from Declaration-3 showed a formulation within the broad scope of claim 1, and said Sample 25SKE25-02 was not stable or flowable. Thus, to the extent Applicant’s attempted to amend claim 1 in the recently filed claim set so as it is commensurate in scope with the alleged unexpected results, said amended claim 1 remained very broad to encompass formulations that was not was not stable and flowable, as evidenced by Sample 25SKE25-02 on page 2 from Declaration-3. As previously discussed, it is reiterated that MPEP §716.02(d) states claim 1 of the instant invention must be commensurate in scope with the evidence of unexpected results.
As previously discussed, it is reiterated that, contrary to Applicant’s Declarations of record, McKnight taught that the agriculture composition containing choline chloride exhibited good storage stability at an elevated storage temperature of up to 54ºC and preferably 45ºC, has low viscosity, is pourable and pumpable (in other words, flowable) (McKnight: abstract; [0003], [0006]-[0007], [0009], [0010], [0013]-[0030], [0031]-[0034], [0036], [0037], [0040], [0041], [0049], [0052]-[0053], [0068]-[0095], [0136]-[0165], [0172], and [0192]-[0193]; clams 1-10 and 15). Likewise, Di Modugno also taught that the agriculture composition containing potassium citrate and citric acid exhibited superior water conditioning properties, is stable, has low viscosity (i.e., 2400 cP), and sprayable (thereby is flowable) (Di Modugno: abstract; [0017]-[0037], [0040], [0051], and [0054]-[0060]; Table 1; claims 1-8).
Applicant argues:
“Assuming arguendo, that a person of ordinary skill in the art were to combine the teachings of McKnight with Di Modugno, Applicant believes that a person of ordinary skill in the art would not have a reasonable expectation of success in arriving at the instantly claimed composition. As shown in the Declaration-3 filed herewith, the Sample #2 clearly demonstrate that the skilled person following the teaching of the prior art would never have reached the claimed invention and its required properties. In particular, Sample #2 clearly demonstrates that the strict combination of McKnight's choline chloride with Di Modugno potassium salts leads to compositions that are not suitable for agricultural applications. As shown in Sample #2, prepared compositions comprising the same drift control component as the one used in the examples of the pending application, while further comprising the mixed salts of potassium taught by Di Modugno (instead of potassium citrate, taken alone, as claimed) were prepared. However, in the two formulations: one with choline chloride (Sample #2), and one without choline chloride (Sample #1), it was observed that the initial viscosity and appearance of the obtained formulations are not stable (phase separation) and are not flowable. Particularly, Sample #2 results in a composition that is non-homogenous with an applesauce like consistency, and experienced greater than 30% separation. Thus, Declaration-3 clearly demonstrates that the strict combination of McKnight and Di Modugno leads to unstable and non-flowable compositions that are not suitable for agricultural applications.” (Remarks, page 12, 1st paragraph).
In response, the Examiner disagrees. As discussed above, Applicant’s alleged comparative data shown in Declaration – 3 are insufficient to obviate the pending 103 rejection over the pending 103 rejection over McKnight and Di Modugno.
As discussed above, it is noted that 25 g/wt% of a potassium salt mixture containing 3 pbw of the potassium di-potassium phosphate, 1 pbw of the tri-potassium citrate and 1 pbw potassium nitrate, are not 15% of potassium di-potassium phosphate, 5% of the tri-potassium citrate, and 5% of potassium nitrate. Rather, it is 12% of potassium di-potassium phosphate (3 pbw of 25g/wt%), 4% of tri-potassium citrate (1 pbw of 25 g/wt%), and 4% of potassium nitrate (1 pbw of 25 g/wt%). For this reason, Applicant’s comparative examples in the Declaration-3 are deficient, as the potassium salt mixture used in Examples 1 or 2 of DiModugno was not used.
As discussed above, Applicant alleged and the Declarant declared that Sample #1 (25SKE25-01) as shown in the Table on page 2 of Declaration-3 as being representative of DiModugno's inventive examples, is misplaced because Sample 25SKE25-01, for at least the reason that neither Example 1 or Example 2 of DiModugno contains Kelcovis DG (Diutan gum). Thus, Applicant’s comparative data in Declaration-3 did not adequately compared to the closest prior art of DiModugno (comparing to Examples 1 and 2 in Table 1 of DiModugno. See MPEP §716.02.
As discussed above, Sample 25SKE25-02 (“Sample #2”) on page 2 of Declaration-3 appeared to be a formulation that reads on the claimed invention of claim 1, as the components and amounts of each components reads on an embodiment of the agriculture composition as recited in claim 1. Thus, this is preponderance of evidence to show that Applicant’s claimed invention as recited in claim 1 remained not adequately commensurate in scope with Applicant’s alleged formulation of 21SKE-15-01 in the Declaration-1 (previously filed 09/24/2021) that was used for showing the alleged unexpected results, as Sample 25SKE25-02 on page 2 from Declaration-3 showed a formulation within the broad scope of claim 1, and said Sample 25SKE25-02 was not stable or flowable. Thus, to the extent Applicant’s attempted to amend claim 1 in the recently filed claim set so as it is commensurate in scope with the alleged unexpected results, said amended claim 1 remained very broad to encompass formulations that was not was not stable and flowable, as evidenced by Sample 25SKE25-02 on page 2 from Declaration-3. As previously discussed, it is reiterated that MPEP §716.02(d) states claim 1 of the instant invention must be commensurate in scope with the evidence of unexpected results.
As discussed above, it is reiterated that Applicant’s alleged evidence of unexpected results from the Declarations of record are not persuasive evidence of nonobviousness because contrary to Applicant’s Declarations of record, McKnight taught that the agriculture composition containing choline chloride exhibited good storage stability at an elevated storage temperature of up to 54ºC and preferably 45ºC, has low viscosity, is pourable and pumpable (in other words, flowable) (McKnight: abstract; [0003], [0006]-[0007], [0009], [0010], [0013]-[0030], [0031]-[0034], [0036], [0037], [0040], [0041], [0049], [0052]-[0053], [0068]-[0095], [0136]-[0165], [0172], and [0192]-[0193]; clams 1-10 and 15). Likewise, Di Modugno also taught that the agriculture composition containing potassium citrate and citric acid exhibited superior water conditioning properties, is stable, has low viscosity (i.e., 2400 cP), and sprayable (thereby is flowable) (Di Modugno: abstract; [0017]-[0037], [0040], [0051], and [0054]-[0060]; Table 1; claims 1-8).
“Applicant argues:
“the combination of citric acid and potassium citrate with the incompletely hydrated water-soluble polymer, results in a composition that is not flowable. Applicant has demonstrated that the combination of the suspending agent with both the citric acid and an increased amount of tri-potassium citrate relative to Di Modugno, in addition to an incompletely hydrated water- soluble polymer (21SKE-15-05 of the Declaration filed on September 24, 2021) does not result in a stable composition with superior water conditioning properties. The same can be said for the incorporation of choline chloride alone with the incompletely hydrated water-soluble polymer (21SKE-15-04), which also does not form a flowable composition and results in an initial viscosity greater than 4000 cP.” (Remarks page 12, last paragraph to page 13).
In response, the Examiner disagrees. As previously discussed, Applicant’s alleged evidence of unexpected results shown the “Subramanian Kesavan” Declaration under 37 CFR 1.132 filed 09/24/2021 (hereafter as Declaration-1) remain not persuasive to obviate the pending 103 rejection as set forth in this office action for the reasons discussed pages 12-14 of the Final Rejection dated 09/19/2023, said reasons being incorporated herein in its entirety. Furthermore, Applicant’s argument focusing on the amounts of citric acid and potassium citrate are not pertinent the claimed invention or the obviousness analysis in the 103 rejection because claim 1 does not require any particular concentrations for citric acid and potassium citrate. Rather, claim 1 recites broadly from 20 to 80 pbw a water conditioning component comprising choline chloride, potassium citrate, and citric acid, and any salt thereof, with not specificity to the concentrations of citric acid and potassium citrate.
As discussed above, it is reiterated that Applicant’s alleged evidence of unexpected results from the Declarations of record are not persuasive evidence of nonobviousness because contrary to Applicant’s Declarations of record, McKnight taught that the agriculture composition containing choline chloride exhibited good storage stability at an elevated storage temperature of up to 54ºC and preferably 45ºC, has low viscosity, is pourable and pumpable (in other words, flowable) (McKnight: abstract; [0003], [0006]-[0007], [0009], [0010], [0013]-[0030], [0031]-[0034], [0036], [0037], [0040], [0041], [0049], [0052]-[0053], [0068]-[0095], [0136]-[0165], [0172], and [0192]-[0193]; clams 1-10 and 15). Likewise, Di Modugno also taught that the agriculture composition containing potassium citrate and citric acid exhibited superior water conditioning properties, is stable, has low viscosity (i.e., 2400 cP), and sprayable (thereby is flowable) (Di Modugno: abstract; [0017]-[0037], [0040], [0051], and [0054]-[0060]; Table 1; claims 1-8).
Accordingly, it is maintained that the end use composition of McKnight that is flowable/pumpable/sprayable is in diluted form (McKnight: [0169], [0187], and [0190]), just as the end use composition of Di Modugno is in diluted form (Di Modugno: Abstract; [0002], [0018], [0043], [0049], [0051], and [0091]). Accordingly, McKnight and Di Modugno are sufficiently combined to render obvious Applicant’s claimed invention.
Applicant argues:
“Applicant believes that a prima facie case of obviousness cannot be found. The individual components when used alone do not prove to be effective water conditioners in agricultural compositions and/or generate flowable compositions (see examples 21 SKE-02, 21SKE-03 and 21-SKE-04 in the Declaration provided as application filing). Even when combinations of the two out of the three components are paired as shown in 21SKE-05, 21SKE-06 and 21SKE-07, the compositions fail to yield compositions that are flowable. Thus, a person of ordinary skill in the art would not have had a reason to believe that combining these features with the incompletely hydrated water-soluble polymer of McKnight would result in a composition that is flowable and stable when the components alone and in pairs fail to demonstrate those properties. This is further emphasized with the prior art comparison data provided in Declaration-3.” (Remarks, page 13, 1st paragraph).
In response, the Examiner disagrees. As discussed above, the Declaration-3 and evidence provided therein , are considered, but found insufficient to obviate the pending 103 rejection over McKnight and Di Modugno for the reasons discussed below.
As discussed above, it is reiterated that 25 g/wt% of a potassium salt mixture containing 3 pbw of the potassium di-potassium phosphate, 1 pbw of the tri-potassium citrate and 1 pbw potassium nitrate, are not 15% of potassium di-potassium phosphate, 5% of the tri-potassium citrate, and 5% of potassium nitrate. Rather, it is 12% of potassium di-potassium phosphate (3 pbw of 25g/wt%), 4% of tri-potassium citrate (1 pbw of 25 g/wt%), and 4% of potassium nitrate (1 pbw of 25 g/wt%). For this reason, Applicant’s comparative examples in the Declaration-3 are deficient, as the potassium salt mixture used in Examples 1 or 2 of DiModugno was not used.
As discussed above, it is reiterated that Applicant alleged and the Declarant declared that Sample #1 (25SKE25-01) as shown in the Table on page 2 of Declaration-3 as being representative of DiModugno's inventive examples, is misplaced because Sample 25SKE25-01, for at least the reason that neither Example 1 or Example 2 of DiModugno contains Kelcovis DG (Diutan gum). Thus, Applicant’s comparative data in Declaration-3 did not adequately compared to the closest prior art of DiModugno (comparing to Examples 1 and 2 in Table 1 of DiModugno. See MPEP §716.02.
As discussed above, it is reiterated that that Sample 25SKE25-02 on page 2 of Declaration-3 appeared to be a formulation that reads on the claimed invention of claim 1, as the components and amounts of each components reads on an embodiment of the agriculture composition as recited in claim 1. Thus, this is preponderance of evidence to show that Applicant’s claimed invention as recited in claim 1 remained not adequately commensurate in scope with Applicant’s alleged formulation of 21SKE-15-01 in the Declaration-1 (previously filed 09/24/2021) that was used for showing the alleged unexpected results, as Sample 25SKE25-02 on page 2 from Declaration-3 showed a formulation within the broad scope of claim 1, and said Sample 25SKE25-02 was not stable or flowable. Thus, to the extent Applicant’s attempted to amend claim 1 in the recently filed claim set so as it is commensurate in scope with the alleged unexpected results, said amended claim 1 remained very broad to encompass formulations that was not was not stable and flowable, as evidenced by Sample 25SKE25-02 on page 2 from Declaration-3. As previously discussed, it is reiterated that MPEP §716.02(d) states claim 1 of the instant invention must be commensurate in scope with the evidence of unexpected results.
As previously discussed, it is reiterated that, contrary to Applicant’s Declarations of record, McKnight taught that the agriculture composition containing choline chloride exhibited good storage stability at an elevated storage temperature of up to 54ºC and preferably 45ºC, has low viscosity, is pourable and pumpable (in other words, flowable) (McKnight: abstract; [0003], [0006]-[0007], [0009], [0010], [0013]-[0030], [0031]-[0034], [0036], [0037], [0040], [0041], [0049], [0052]-[0053], [0068]-[0095], [0136]-[0165], [0172], and [0192]-[0193]; clams 1-10 and 15). Likewise, Di Modugno also taught that the agriculture composition containing potassium citrate and citric acid exhibited superior water conditioning properties, is stable, has low viscosity (i.e., 2400 cP), and sprayable (thereby is flowable) (Di Modugno: abstract; [0017]-[0037], [0040], [0051], and [0054]-[0060]; Table 1; claims 1-8).
Applicant argues:
“While McKnight teaches the use of the choline chloride as a hydration inhibitor, and Di Modugno teaches the use of a mixture of potassium salts as alternatives to water conditioners, in view of the evidence set forth above, Applicant does not believe that either teaching, alone or in combination, would have suggested the use of a water conditioning component that specifically includes choline chloride, potassium citrate and citric acid as claimed and that also acts as a hydration inhibitor for the incompletely hydrated polymer.
McKnight specifies that the degree of hydration of the water-soluble polymer can be characterized by viscosity measurements. While a "non-hydrated" water-soluble polymer makes no significant contribution to the viscosity of the composition, a "completely hydrated" water-soluble polymer makes the maximum contribution to the viscosity of the composition. The instantly claimed incompletely hydrated polymers, however, are in between these extremes in terms of their contribution to the viscosity.
Further, para. [0038] of McKnight teaches that the viscosity of a given amount of a water-soluble polymer, in a given amount of an aqueous medium, in the presence of a given amount of a proposed hydration inhibitor component, and under given shear conditions, can be compared to the viscosity of the same amount of the water-soluble polymer in the same amount of the aqueous medium in the absence of the proposed hydration inhibitor component (the "baseline composition"). If the viscosity of the test composition is equal to that of the baseline composition, then the water- soluble polymer of the test composition is deemed to be completely hydrated (and the proposed hydration inhibitor component is ineffective in the amount tested to inhibit hydration of the polymer). If the viscosity of the test composition is less than that of the baseline composition, then the water- soluble polymer of the test composition is deemed to be incompletely hydrated (and the proposed hydration inhibitor component is effective in the amount tested to inhibit hydration of the polymer).Thus, Applicant believes that in starting from McKnight, a person of ordinary skill in the art would have only considered choline chloride as a suitable hydration inhibitor capable of lowering the viscosity of a given amount of water-soluble polymer in a given amount of medium.” (Remarks, page 13, last paragraph to page 14).
In response, the Examiner disagrees. McKnight teaches structurally same choline chloride as the claimed invention and thus, would meet the function as “water conditioning component, irrespective if said choline chloride has a secondary function as “hydration inhibitor.”
As previously discussed, it is maintained that while the water conditioning component in claim 1 contains potassium citrate among other components, independent claim 1 does not exclude the inclusion of other potassium salts whether in the water condition component or the overall agricultural composition, due to claim 1 containing the transitional phrases “comprising.” Thus, it is noted that the transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. See, e.g., Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004) ("[L]ike the term ‘comprising,’ the terms ‘containing’ and ‘mixture’ are open-ended."). Invitrogen Corp. v. Biocrest Manufacturing, L.P., 327 F.3d 1364, 1368, 66 USPQ2d 1631, 1634 (Fed. Cir. 2003); Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501, 42 USPQ2d 1608, 1613 (Fed. Cir. 1997) ("Comprising" is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim.). Thus, the presence of other potassium salts in the composition of Di Modugno would still form a construct within the scope of claim 1.
As discussed above, it is reiterated that McKnight teaches that the suspending agent plays a role in the lowering the viscosity of fully hydrated water-soluble polymer (McKnight: 0054]). Thus, regardless of DiModugno using a fully hydrated water-soluble polymer, an ordinary artisan would can still look to DiModugno for guidance on using citric acid and a mixture of potassium salts including tri-potassium citrate in the agriculture composition of McKnight, because McKnight teaches that suspending agent plays a part in lowering the viscosity of the fully hydrated water-soluble polymer, as evidenced by Example 2 of DiModugno.
Thus, there is reasonable predictability for a person of ordinary skill in the art would have to believe that the potassium citrate and citric acid of Di Modugno would behave similarly with McKnight's incompletely hydrated water-soluble polymer that is suspended in a medium because the composition of McKnight has the presence of suspending agent and choline chloride, in which choline chloride aids in inhibiting hydration of the incompletely hydrated water-soluble polymer, thereby the inclusion of potassium citrate and citric acid would further lower the viscosity of the composition, as it was shown in Di Modugno’s Example, 2, the presence of citric acid, suspending agent (ATTAGEL 50), and potassium salts, in the composition containing fully hydrated water-water polymer exhibited a low viscosity of 2400 cP, which meets the claimed viscosity of less than 4000 cP.
Applicant argues:
“Given the description provided in McKnight, Applicant does not believe that a person of ordinary skill in the art would have considered the citric acid or the potassium citrate of Di Modugno for a water conditioning component that functions as a water conditioner and hydration inhibitor for the water-soluble polymer. In the Examples in the Declaration originally filed with the application, and as noted above, demonstrate that the individual use of the potassium citrate, citric acid and choline chloride fail to exhibit a combined hydration inhibition and water conditioning effect. This is evidenced by the viscosities of greater than 4000 cP in examples 21SKE-015-02 to 21SKE- 015-04. Tests involving the use of two of the components as water conditioner, shown in 21 SKE-015- 05 to 21SKE-015-07 also failed to demonstrate the combined effect as shown in the viscosity as well as water conditioning test transmission ratio data. Thus, Applicant believes that there is a sufficient demonstration that a person of ordinary skill in the art would not have reasonably expected to arrive at the instantly claimed invention, particularly the water conditioning component that includes the choline chloride, potassium citrate and citric acid which functions as a water conditioner and hydration inhibitor for the incompletely hydrated water-soluble polymer.” (Remarks, page 15, 1st paragraph).
In response, the Examiner disagrees. As discussed above, it is maintained that that McKnight teaches that the suspending agent plays a role in the lowering the viscosity of fully hydrated water-soluble polymer (McKnight: 0054]). Thus, regardless of DiModugno using a fully hydrated water-soluble polymer, an ordinary artisan would can still look to DiModugno for guidance on using citric acid and a mixture of potassium salts including tri-potassium citrate in the agriculture composition of McKnight, because McKnight teaches that suspending agent plays a part in lowering the viscosity of the fully hydrated water-soluble polymer, as evidenced by Example 2 of DiModugno.
Thus, there is reasonable predictability for a person of ordinary skill in the art would have to believe that the potassium citrate and citric acid of Di Modugno would behave similarly with McKnight's incompletely hydrated water-soluble polymer that is suspended in a medium because the composition of McKnight has the presence of suspending agent and choline chloride, in which choline chloride aids in inhibiting hydration of the incompletely hydrated water-soluble polymer, thereby the inclusion of potassium citrate and citric acid would further lower the viscosity of the composition, as it was shown in Di Modugno’s Example, 2, the presence of citric acid, suspending agent (ATTAGEL 50), and potassium salts, in the composition containing fully hydrated water-water polymer exhibited a low viscosity of 2400 cP, which meets the claimed viscosity of less than 4000 cP.
Applicant argues:
“Sample-5 provided in Declaration-3 also demonstrates that when the water conditioning component is provided in amounts inside of the 20-80 pbw based on the amount of the liquid medium, but too much liquid medium is present (i.e., using 2+54.27wt% water as liquid medium with 15 wt% of the water conditioning component, thus ~27 pbw relative to the amount of water added) the composition yet again fails to be flowable as required by the present claims. 21SKE-15-01, however, as shown in the Declaration provided at the filing of the application, includes the amount of the liquid medium as claimed, as well as the relative amounts of the water conditioning component. Thus, when the claimed components are included within the claimed ranges, the compositions provide a flowable liquid with a viscosity within the claimed range.” (Remarks page 15, last paragraph to page 16).
In response, the Examiner disagrees. It is first noted that there is no “Sample-5” in Declaration-3. It appeared that Applicant is referencing to sample 25SKE25-04 from Declaration-3. With respect to sample 25SKE25-04, it is not clear whether the water condition components from sample 25SKE25-04 are in “amounts inside of the 20-80 pbw based on the amount of the liquid medium,” as Applicant has not explained how the these water conditioning components from sample 25SKE25-04 met the amounts inside of the 20-80 pbw based on the amount of the liquid medium as claimed. Nevertheless, this sample 25SKE25-04 is not an adequate comparative evidence of nonobviousness because, sample 25SKE25-04 is not a formulation of Di Modugno. As discussed above, the Samples shown in the Table on page 2 of the Declaration-3 are not representative of a formulation of Di Modugno for at least the reason that neither Example 1 or Example 2 of DiModugno contains Kelcovis DG (Diutan gum). Thus, Applicant’s comparative data in Declaration-3 did not adequately compared to the closest prior art of DiModugno (comparing to Examples 1 and 2 in Table 1 of DiModugno. See MPEP §716.02.
As discussed above, it is reiterated that Sample 25SKE25-02 (“Sample #2”) on page 2 of Declaration-3 appeared to be a formulation that reads on the claimed invention of claim 1, as the components and amounts of each components reads on an embodiment of the agriculture composition as recited in claim 1. Thus, this is preponderance of evidence to show that Applicant’s claimed invention as recited in claim 1 remained not adequately commensurate in scope with Applicant’s alleged formulation of 21SKE-15-01 in the Declaration-1 (previously filed 09/24/2021) that was used for showing the alleged unexpected results, as Sample 25SKE25-02 on page 2 from Declaration-3 showed a formulation within the broad scope of claim 1, and said Sample 25SKE25-02 was not stable or flowable. Thus, to the extent Applicant’s attempted to amend claim 1 in the recently filed claim set so as it is commensurate in scope with the alleged unexpected results, said amended claim 1 remained very broad to encompass formulations that was not was not stable and flowable, as evidenced by Sample 25SKE25-02 on page 2 from Declaration-3. As previously discussed, it is reiterated that MPEP §716.02(d) states claim 1 of the instant invention must be commensurate in scope with the evidence of unexpected results. Note that Applicant’s comparative data in Declaration-3 used specifically water as the liquid medium (as well as the formulation of 21SKE-15-01 from Declaration-1), yet claim 1 recited generically liquid medium which include ethanolic solutions. This is one of many examples to show that claim 1 is not adequately commensurate in scope with the formulation of 21SKE-15-01 from Declaration-1.
As previously discussed, the inventive formulation (21SKE-015-01) shown in Table 1 of the Declaration-1 (page 2) is drawn to a specific formulation with specific components and concentrations. In contrast, claim 1 is much broader than the inventive formulation used for showing the alleged unexpected results. Thus, claim 1 is not commensurate in scope the inventive formulation (21SKE-015-01) used for showing unexpected results in the Declaration-1, Thus, MPEP §716.02(d) states that evidence of unexpected results much be commensurate in scope with the claimed invention. Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980) (Claims were directed to a process for removing corrosion at "elevated temperatures" using a certain ion exchange resin (with the exception of claim 8 which recited a temperature in excess of 100C). Appellant demonstrated unexpected results via comparative tests with the prior art ion exchange resin at 110C and 130C. The court affirmed the rejection of claims 1-7 and 9-10 because the term "elevated temperatures" encompassed temperatures as low as 60C where the prior art ion exchange resin was known to perform well. The rejection of claim 8, directed to a temperature in excess of 100C, was reversed.). See also In re Peterson, 315 F.3d 1325, 1329-31, 65 USPQ2d 1379, 1382-85 (Fed. Cir. 2003) (data showing improved alloy strength with the addition of 2% rhenium did not evidence unexpected results for the entire claimed range of about 1-3% rhenium); In re Grasselli, 713 F.2d 731, 741, 218 USPQ 769, 777 (Fed. Cir. 1983) (Claims were directed to certain catalysts containing an alkali metal. Evidence presented to rebut an obviousness rejection compared catalysts containing sodium with the prior art. The court held this evidence insufficient to rebut the prima facie case because experiments limited to sodium were not commensurate in scope with the claims.).
As discussed above, it is reiterated that contrary to Applicant’s Declarations of record, McKnight taught that the agriculture composition containing choline chloride exhibited good storage stability at an elevated storage temperature of up to 54ºC and preferably 45ºC, has low viscosity, is pourable and pumpable (in other words, flowable) (McKnight: abstract; [0003], [0006]-[0007], [0009], [0010], [0013]-[0030], [0031]-[0034], [0036], [0037], [0040], [0041], [0049], [0052]-[0053], [0068]-[0095], [0136]-[0165], [0172], and [0192]-[0193]; clams 1-10 and 15). Likewise, Di Modugno also taught that the agriculture composition containing potassium citrate and citric acid exhibited superior water conditioning properties, is stable, has low viscosity (i.e., 2400 cP), and sprayable (thereby is flowable) (Di Modugno: abstract; [0017]-[0037], [0040], [0051], and [0054]-[0060]; Table 1; claims 1-8).
As a result, for at least the reasons discussed above, claims 1-6, 8-15, 19-22, 26-27, and 29-31 remain rejected as being obvious and unpatentable over the combined teachings of the cited prior arts in the pending 103 rejections as set forth in this office action.
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-6, 8-15, 19-22, 26-27, and 29-31 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-34 of U.S. Patent No. 11576376 in view of McKnight et al (US 2016/0000070 A1) and Di Modugno et al (11 August 2016; US 2016/0227765 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the Patent ‘376 significantly overlap with the subject matter of instant claims, i.e., an agricultural composition comprising a liquid medium, a pesticide, a drift reduction agent such as guar, suspending agents such as attapulgite and xanthan gum, a glycol or glycerol (glycerin), choline chloride, and a surfactant.
While the claims of instant application does not mention the amount of suspending agent, it would have been obvious to optimize the amount of the suspending agent in the instant claims to an amount of at least 0.5 pbw to 10 pbw based on 100 pbw of the composition, in view of the guidance from McKnight (abstract; [0003], [0009], [0010], [0013]-[0030], [0031]-[0034], [0036], [0037], [0040], [0041], [0049], [0052]-[0053], [0068]-[0095], [0136]-[0165] and [0172]; clams 1-10 and 15).
While the claims of the instant application does not mention the pesticide composition contains water-soluble salt of an auxin herbicide, it would have been obvious to incorporate an auxin herbicide as the pesticide active in the composition of the instant claims, in view of the guidance from McKnight ([0006]).
While the claims of the Patent ‘376 do not contain potassium citrate and citric acid, it would have been obvious to include potassium citrate and citric acid in the agricultural composition of the copending Application ‘298 in view of the guidance from Di Modugno ([0017], [0030] and [0036]).
While the claims of the Patent ‘376 do not recite the amounts of water conditioning components, it would have been obvious to optimize the amount of water conditioning components including choline chloride, potassium citrate and citric acid to an amount from 20 pbw to 80 pbw in view of the guidance from McKnight and Di Modugno (McKnight: abstract; [0003], [0009], [0010], [0013]-[0030], [0031]-[0034], [0036], [0037], [0040], [0041], [0049], [0053], [0055]-[0111], [0157]-[0175]; clams 1-10 and 15; Modugno: abstract; [0017]-[0037] and [0054]-[0082]; Table 1; claims 1-8).
Consequently, the ordinary artisan would have recognized the obvious variation of the instant claimed subject matter over U.S. Patent No. 11576376 in view of McKnight and Di Modugno.
Response to Arguments
Applicant's arguments filed 12/15/2025 have been fully considered but they are not persuasive.
Applicant argues that “the claims are patentable for the same reasons as discussed above with respect to McKnight and Di Modugno.” (Remarks, page 8, last paragraph).
In response, the Examiner disagrees. As discussed above, Applicant’s arguments pertaining to McKnight and DiModugno were not persuasive for the reasons discussed on pages 13-31 of this office action, said discussion being incorporated herein its entirety.
Accordingly, the double patent rejection over claims 1-6, 8-15, 19-22, 26-27, and 29-31 of U.S. Patent No. 11576376 (previously copending Application No. 16185298) is maintained for the reason of record and pending filing of a terminal disclaimer.
Conclusion
No claim is 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.
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/DOAN T PHAN/ Primary Examiner, Art Unit 1613