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 .
Status of Application
Receipt of the Applicant’s Remarks and Amendments filed on 03/16/2026 is acknowledged.
Claims 1, 2, 8-14 and 20 are pending.
Claims 3-7 and 15-19 remain cancelled.
Claims 1, 2, 9 and 20 are amended.
Claims 1, 2, 8-14 and 20 are pending and are included in the prosecution.
Maintained Rejections
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 2, 8-14 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Rac-Glufosinate mixtures: Herbicidal mixtures comprising glufosinate or its salt and at least one further herbicide, and their use (hereinafter the article is referred as Rac-Glufosinate Mixtures) in view of Method for the control of fungicide-resistant Phakopsora pachyrhizi in crop cultures, especially their use in soybean, canola, corn and cotton cultures (hereinafter the article is referred as Phakopsora), Fungicidal mixtures comprising substituted 3-phenyl-5-(trifluoromethyl)-1,2,4-oxadiazoles (hereinafter the article is referred as Fungicidal mixtures), Herbicide safener,
Winter et al. (WO 2019/030099), Desnouck et al. (EP 3469906 A1), Jousseaume et al. (WO 2011/094386 A3), an article of interest Florida Homeowner Herbicide Guide: Considerations, Applications, and Selection (hereinafter Herbicide Guide), and further in view of Hacker et al. (US 2011/0287934 A1) hereinafter reference is referred as Hacker.
Rac-Glufosinate Mixtures teaches herbicidal mixtures comprising glufosinate or its salt and at least one further herbicide. Furthermore, the disclosure relates to a
method for controlling undesirable vegetation in burndown programs, in industrial vegetation management and forestry, in vegetable and perennial crops and
in turf and lawn and relates to methods and uses for controlling undesirable vegetation in soybeans, corn, cotton, canola (oil seed rape), rice and cereals (especially wheat). The mixtures, methods and uses are described further in embodiments 1 to 16 (abstract).
Regarding claim 1, Rac-Glufosinate Mixtures teaches suitable treatment combinations of active compounds comprising glufosinate, imazethapyr (page 3, ¶3rd-4th), and pelargonic acid (page 39, ¶ 8-9). Furthermore, Rac-Glufosinate Mixtures disclose surprisingly, it has been found that mixtures of glufosinate or its salt and at least herbicidal compound II as listed above (pelargonic acid) show a higher activity in burndown programs, in industrial vegetation management and forestry, in vegetable and perennial crops and in turf and lawn, if compared to glufosinate alone (page 39, ¶ 9).
Phakopsora teaches a method for controlling fungicide-resistant Phakopsora pachyrhizi on soybean plants, comprising treating the plants, their seed or the soil with a fungicidally effective amount of a compound selected from the group consisting of compounds (I.1) to (I.33), which belong to the chemical class of trifluoro-methyl-oxadiazoles (abstract).
Regarding claim 1, Phakopsora teaches combination of imazethapyr, glufosinate (page 9 top middle and bottom of page), and pelargonic acid (page 10, top of page).
Fungicidal Mixtures teaches a fungicidal mixture comprising, as active components at least one fungicidally active 3-phenyl-5-(trifluoromethyl)-1,2,4-oxadiazole in binary and ternary combinations with other pesticides (abstract).
Regarding claim 1, Fungicidal mixtures teaches combination of imazethapyr, glufosinate (page 5, top & bottom page) and pelargonic acid (page 6, mid page).
Herbicide Safener teaches a herbicide safener composition comprising at least one compound selected from N-(aminocarbonyl)-2-fluorobenzene sulfonamide and salts dioxygenase inhibitors, including salts thereof) (page 2, ¶ 2).
Regarding claim 1, Herbicide Safener teaches combination of imazethapyr (page 8, bottom page), glufosinate and pelargonic acid (page 14, ¶ 3).
Winter et al. teach herbicidal mixtures comprising L-glufosinate or its salt and an herbicidal compound II to include pelargonic acid, wherein the herbicidal mixtures relates to a method for controlling undesirable vegetation in burndown programs, in industrial vegetation management and forestry, in vegetable and perennial crops and in turf and lawn (abstract).
Regarding claims 1 and 20, Winter et al. teach herbicidal composition comprising glutamine synthetase inhibitor L-glufosinate in emulsifiable concentration (EC) is 5% (p. 30, line 6), wherein L-glufosinate in herbicidal mixtures can comprise more than 70% by weight of the L-enantiomer (p. 3, line 20., claim 1) and pelargonic acid (abstract, (p. 3, lines 6-18, claim 35). Notably, Winter et al. further disclose that “the resulting agrochemical mixtures generally comprise between 0.01 and 95%, preferably between 0.1 and 90%, and in particular between 0.5 and 75%, by weight of active substance. The active substances are employed in a purity of 90% to 100%, preferably from 95% to 100% (according to NMR spectrum)” (para. 0091), which overlap the range of the instant herbicidal composition of 5% (v/v) to about 15 %(v/v) of at least one glutamine synthetase inhibitor (active substance) and “The mixtures in question give, after two-to-tenfold dilution, active substance concentrations of from 0.01 to 60% by weight, preferably from 0.1 to 40%, in the ready-to-use preparations (paras. 0091-0092), which overlap the range of about 0.5% of at least one glutamine synthetase inhibitor per gallon of formulation as recited in instant claims 1 and 20. As recognized by MPEP §2144.05, 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).
Regarding claim 2, Winter et al. teach herbicidal composition comprising at least one glutamine synthetase inhibitor glufosinate (p. 2, lines 10-15, p. 3, lines 6-7).
Regarding claim 8, Winter et al. teach herbicidal composition comprising ready-to-use (RTU) formulation can be emulsifiable concentrate (EC), powder, water dispersible granule (WG) and water soluble granule (SG) (p.6, lines 15-20). Therefore, the limitation and structural features are met.
Regarding claim 9, Winter et al. teach a method for controlling undesirable vegetation in burndown programs, wherein the herbicidal composition can be applied pre- or post-emergence, i.e., before, during and/or after emergence of the undesirable plants, applied to a locus where crops will be planted before planting or emergence of the crop (p. 10, lines 25-30. Therefore, the limitation and structural features are met.
Regarding claim 10, Winter et al. teach a method to the use of the herbicidal composition for controlling undesirable vegetable in crops, wherein the crop are resistant to one or more herbicides and/or pathogens. (p. 18, line 41 to p.19, line 2). Therefore, the limitation and structural features are met.
Regarding claim 11, Winter et al. teach a method to apply the herbicidal composition to a locus where crops will be planted before or emergence of the crop and also can be applied to where undesirable vegetation is present or expected to be present (p. 10, lines 33-39, claims 10-12). Therefore, the limitation and structural features are met.
Regarding claim 12, Winter et al. teach a method wherein the herbicidal composition are suitable for controlling weeds that are resistant to commonly used herbicides such as weeds resistant to glyphosate, dicamba, atrazine, ALS inhibitors such as sulfonylureas, imidazolinones (p. 15, lines 11-16). Therefore, the limitation and structural features are met.
Regarding claim 13, Winter et al. teach herbicidal mixtures comprising L-glufosinate or its salt and an herbicidal compound II to include pelargonic acid, wherein the herbicidal mixtures relates to a method for controlling undesirable vegetation in burndown programs, in industrial vegetation management and forestry, in vegetable and perennial crops and in turf and lawn (abstract). One of ordinary skill in the art would have found it obvious to include all essential components of the herbicidal composition in a kit with the optional instructions for use. Therefore, the limitation and structural features are met.
Regarding claim 14, Winter et al. teach herbicidal composition in tank mix comprising, oils, wetters, adjuvants, insecticides, fungicides, growth regulators, may be added to the active substances comprising them as premix prior to use in (tank mix) and the mixture is made up with water, buffer, and/or further auxiliaries to the desired application concentration (p. 10, lines 12-20). Therefore, the limitation and structural features are met.
Winter et al. fails to teach acetolactate synthase (ALS) inhibitor is imazethapyr.
Desnouck et al. teach a synergistic herbicidal composition comprising (A) herbicidally active amount of pelargonic acid and a component (B) flazasulfuron, wherein a weight ratio to components (A) and (B) is in a range up to 1000:1, encompassing ratios up to 900:1, 700:1, 200:1, 145:1, and 115:1,a kit comprising pelargonic acid and flazasulfuron and a use of a herbicide composition for controlling unwanted vegetation (abstract; ¶ 0005; claims 1-2). Notably, Desnouck et al. disclose prior art (US 9609865 B2) shows that problem that weight ratios of pelargonic acid and specific acetolactate synthase (ALS) inhibitors are not always optimally chosen, as is the case for flazasulfuron, resulting in the absence of or suboptimal synergistic effects (0003). However, the combination of pelargonic acid and flazasulfuron has provided a synergistic effective herbicide and has shown an unexpected increase in herbicidal activity when combined with pelargonic acid attributing to the range in weight ratio (0006). Furthermore, Desnouck et al. teach flazasulfuron is an acetolactate synthase (ALS) inhibitor (0019), and although flazasulfuron has proven most efficiently in the herbicide composition, alternative embodiments provide other herbicide compositions that are formulated by applying at least one other ALS inhibitor in addition to or instead of flazasulfuron, and relative amounts of such ALS inhibitors with regard to pelargonic acid, or alternatively other herbicidal active fatty acids may be included within the ratio ranges or within other or broader ranges (0023).
Regarding claim 1, Desnouck et al. teach a synergistic herbicidal composition comprising (A) herbicidally active amount of pelargonic acid and a component (B) flazasulfuron, wherein a weight ratio to components (A) and (B) is in a range up to 1000:1 (0005, claim 1). Therefore, the limitation and structural features are met.
Regarding claim 13, Desnouck et al. teach a synergistically effective herbicide composition comprising pelargonic acid and an ALS inhibitor in a kit to use for controlling unwanted vegetation (0001, claims 6 and 7). Therefore, the limitation and structural features are met.
Regarding claim 14, Desnouck et al. teach a synergistically effective herbicide composition in ready-to-use (RTU) formulation of emulsifiable concentrate (EC), wettable powder (WP), water soluble granule (SG) formulations in tank mix (0020), and diluted in water (0030, 0036) and application by spraying (0045). Therefore, the limitation and structural features are met.
Regarding claims 1 and 20, Desnouck et al. teach a synergistically effective herbicide composition comprising as component (A) an herbicidally active amount of pelargonic acid and as component (B) flazasulfuron, wherein a weight ratio of components (A) and (B) is in a range up to 1000:1, up to 900:1, up to 880:1, up to 700: 1, up to 570: 1, up to 540:1, up to 510: 1, up to 480:1, up to 450:1. up to 200:1, up to 199:1, up to 170:1, up to 145:1, up to 120: 1, up to 115:1. Therefore, these ranges encompass instant ranges of pelargonic acid (10% v/v to about 20%) and ALS inhibitor (1% to about 5%), and thus the limitation and structural features are met.
Claim 1 amended to add two new limitations: 1. The glutamine synthetase inhibitor is specified as “glufosinate or an agriculturally acceptable salt thereof” (was broader “at least one glutamine synthetase inhibitor”); 2. Added weight ratio: “pelargonic acid and the at least one glutamine synthetase inhibitor are present at a weight ratio of about 12:1 to about 1:1”. Therefore, regarding claims 1 and 20, the disclosed weight ratio ranges of up to 1000:1 encompass the instant claimed ratio of about 12:1 to about 1:1 (pelargonic acid to glufosinate), establishing prima facie obviousness under MPEP § 2144.05. 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). To overcome this prima facie case, Applicant must provide evidence of criticality — specifically, comparative data demonstrating that compositions formulated at ratios just outside the claimed range (e.g., at approximately 15:1 or 0.5:1) exhibit materially inferior herbicidal performance relative to compositions within the claimed range. No such evidence has been submitted.
Desnouck et al. fails to specifically teach glutamine synthase inhibitor glufosinate and the ALS inhibitor imazethapyr.
Jousseaume et al. teach synergistic herbicidal composition comprising penoxsulam and oxyfluorfen to control weeds in crops, perennial tree, vine crops, cereal and grain crops, pastures, rangelands, IVM and turf, wherein the composition provide improved pre-emergence residual and post-emergence burndown with residual herbicidal weed control (abstract).
Regarding claim 1, Jousseaume et al. teach a synergistic herbicidal composition can be applied in conjunction with one or more other herbicides to control a wider variety of undesirable vegetation, and some of the herbicides can be employed in conjunction with the synergistic composition (p. 4, lines 8-13) includes glufosinate (p. 5, line 17), imazethapyr (p. 5, line 19), and pelargonic acid (p. 5, line 33) among the herbicides suitable for conjunctive use in a single herbicidal system. These are targeted, specific disclosures of all three claimed components within a single reference.
The article of interest, Herbicide Guide teaches pelargonic acid is a contact herbicide often added to glyphosate to speed results of killing weeds and it is absorbed through green tissues and not absorbed by plant roots (p. 4, right col., para. 1), Imazethapyr are herbicides classified as acetolactate synthase (ALS) inhibitors and are absorbed by both shoots and plant roots, and often added to herbicides to provide “total vegetation control” or “year-long control” (p. 4, right col., para. 2), and Glufosinate is a non-selective herbicide that is minimally translocated, and is often considered a contact herbicide, wherein glufosinate may be added to other products to control a wide variety of grassy and broadleaf weeds, and glufosinate is often used to control weeds that are difficult to control with glyphosate or that are resistant to glyphosate (p. 4, right col., para. 4). These teachings establish the mechanistically complementary properties of the three components as independently recognized by the art.
Hacker teaches herbicide combinations and the method of use for controlling harmful plants in rice crops (abstract) comprising synergistic combination of broad-spectrum herbicides (component A) with certain herbicides (component B) (paragraph 0011). The (component A) comprises glufosinate and its salts, L-glufosinate and its salts, glufosinate-ammonium (paragraphs 0019-0023); (component B) comprises a herbicide of the formular (B1):
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in which X represent N or CH and R represent CO2H or a herbicidally active derivative thereof (paragraphs 0016-0017), and combination can further comprise of (active compound C) (paragraph 0072). Hacker teaches suitable (compound C) are imazethapyr and pelargonic acid (paragraph 0072). Notably, Hacker discloses the combination of glufosinate (A), a glutamine synthetase inhibitor + (B) herbicide, allow synergistically increased effects which far and unexpectedly exceed the effects which can be achieved with the individual active compounds (A) and (B) (paragraph 0062). This suggests the composition exhibits increased efficacy of at least 50%. Therefore, the limitation and structural features of are met as recited in claims 1 and 20.
Examiner modifies the motivation to combine for clarification.
It would have been prima facie obvious to one having ordinary skill in the art as of the effective filing date of the claimed invention to combine the teachings of Winter et al., Hacker, Desnouck et al., Jousseaume et al., and Herbicide Guide to arrive at the claimed herbicidal composition comprising glufosinate, imazethapyr, and pelargonic acid, with a reasonable expectation of success.
Winter et al. provides the foundational herbicidal composition comprising L-glufosinate and pelargonic acid in a ready-to-use formulation. A PHOSITA seeking to improve upon this base composition by incorporating a third herbicidally active component would have been directly guided by Hacker, which specifically identifies imazethapyr as a suitable compound C partner for glufosinate-based combinations (¶ 0072) and teaches that the combination of glufosinate (compound A) with co-herbicide components produces synergistic effects that far and unexpectedly exceed the effects of the individual active compounds alone (¶ 0062). Hacker’s explicit identification of imazethapyr in the context of a glufosinate-containing composition provides both the specific component and a well-grounded motivation to incorporate it.
This motivation is further reinforced by Desnouck et al., which demonstrates that pelargonic acid combined with an ALS inhibitor yields unexpected synergistic herbicidal activity (¶ 0006), and expressly generalizes this synergistic effect beyond flazasulfuron to other ALS inhibitors (¶ 0023). Because imazethapyr is a recognized ALS inhibitor, a PHOSITA would have had a reasonable expectation that substituting imazethapyr for flazasulfuron in a pelargonic acid-containing composition would yield comparable synergistic activity. Jousseaume et al. further corroborates the combinability of all three components by enumerating glufosinate (p. 5, line 17), imazethapyr (p. 5, line 19), and pelargonic acid (p. 5, line 33) as herbicides suitable for conjunctive use in a single synergistic system. Herbicide Guide independently confirms the mechanistic complementarity of the three components — pelargonic acid as a contact herbicide acting through green tissue absorption, glufosinate as a non-selective minimally-translocated contact herbicide for broad-spectrum weed control, and imazethapyr as an ALS inhibitor providing both shoot and root absorption with extended residual control (p. 4, right col., paras. 1, 2, 4) — providing an independent, mechanism-based motivation for a PHOSITA to combine all three components to achieve broader and more durable vegetation control than any two-component system.
It would therefore have been prima facie obvious to a PHOSITA to optimize the amounts of glufosinate, imazethapyr, and pelargonic acid across the various ready-to-use formulations disclosed by Winter et al., Desnouck et al., Jousseaume et al., and Hacker, with a reasonable expectation of success, because “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.” In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003).
Response to Remarks/Amendments
Receipt of Applicant’s Remarks and Amendments filed 03/16/2026 is acknowledged.
Applicant argues: A) the cited references do not teach or suggest the specific three-component combination; B) there is no reasonable expectation of synergistic efficacy; C) there is no motivation to combine the references; D) the amended weight ratio limitation distinguishes the claimed composition from the prior art.
The arguments have been fully considered and found not persuasive for the reasons set forth below.
Response to Argument A. Applicant contends that no reference teaches the specific combination of glufosinate, pelargonic acid, and imazethapyr. This argument is not persuasive. A § 103 rejection does not require any single reference to disclose the complete claimed combination. Jousseaume et al. explicitly enumerates glufosinate (p. 5, line 17), imazethapyr (p. 5, line 19), and pelargonic acid (p. 5, line 33) among the herbicides suitable for use in conjunction with its synergistic compositions. Hacker specifically identifies imazethapyr and pelargonic acid as compound C partners for glufosinate-containing combinations (¶ 0072) and teaches synergistic effects (¶ 0062). These are targeted, specific disclosures — not generic laundry lists. Applicant’s argument that the three components merely appear in unrelated broad lists is contradicted by the specificity of the Jousseaume and Hacker disclosures. The rejection is maintained.
Response to Argument B. Applicant argues there is no reasonable expectation of synergistic efficacy for the claimed specific combination. This argument is not persuasive. The § 103 analysis requires a reasonable expectation of success in arriving at a functional composition, not certainty of achieving any particular performance metric. The prior art affirmatively teaches synergy in this compound class system: Rac-Glufosinate Mixtures teaches superadditive effects with glufosinate + co-herbicide combinations (page 39, ¶¶ 8–9); Desnouck et al. demonstrates unexpected synergistic increase in herbicidal activity for pelargonic acid + ALS inhibitor (¶ 0006) and explicitly generalizes to other ALS inhibitors (¶ 0023); Hacker teaches synergistic effects far exceeding individual compound activity for glufosinate-containing combinations (¶ 0062). A PHOSITA would have had every reason to expect synergistic activity for the claimed combination based on these teachings. Moreover, Applicant has not submitted a declaration under 37 CFR 1.132 with comparative experimental data demonstrating that the degree of synergy achieved by the claimed combination is unexpected relative to the closest prior art combination. Absent such evidence, the assertion of unexpected results is unsupported. The rejection is maintained.
Response to Argument C. Applicant argues that the references describe distinct herbicidal systems and that the examiner has failed to articulate a specific motivation to combine. This argument is not persuasive. As set forth in the motivation section above, the motivation is articulated from within the references themselves: Herbicide Guide specifically teaches the mechanistically complementary properties of pelargonic acid, glufosinate, and imazethapyr at a level that would directly motivate a PHOSITA to combine them; Desnouck et al. expressly invites substitution of other ALS inhibitors for flazasulfuron (¶ 0023); and Hacker directly identifies the three claimed components as a combinable set (¶ 0072). These are not generic motivations based on the references generally relating to herbicides — they are specific textual teachings within the cited art. The rejection is not based on hindsight; it is based on the explicit content of the prior art. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The rejection is maintained.
Response to Argument D. Applicant argues that the amended weight ratio of “about 12:1 to about 1:1” (pelargonic acid to glufosinate) is a novel and non-obvious structural feature absent from the prior art. This argument is not persuasive. Desnouck et al. discloses a weight ratio of component (A) pelargonic acid to component (B) ALS inhibitor of up to 1000:1 (claims 1–2; ¶ 0005). The claimed range of about 12:1 to about 1:1 falls entirely within this disclosed range. As recognized by MPEP § 2144.05, where a claimed range overlaps or lies within a range disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257 (CCPA 1976); In re Woodruff, 919 F.2d 1575 (Fed. Cir. 1990). The fact that the claimed ratio is narrower than the disclosed range does not overcome the prima facie case — Applicant must instead provide evidence of criticality, i.e., comparative data showing that compositions at ratios just outside the claimed range (e.g., 15:1 or 0.5:1) are materially inferior. No such data has been submitted. The rejection is maintained.
Conclusion
No claims are allowed.
THIS ACTION IS MADE FINAL. 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 ANDRE MACH whose telephone number is (571)272-2755. The examiner can normally be reached 0800 - 1700 M-F.
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/ANDRE MACH/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
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