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 .
Applicant’s arguments filed 12/01/2025 has been entered. Claims 1-12 are pending.
Withdrawn rejections
Applicant's amendments and arguments filed 12/1/2025 are acknowledged and have been fully considered. Any rejection and/or objection not specifically addressed below is herein withdrawn.
Maintained 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 § 2146 et seq. 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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 1-12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 16, 17, 23 and 27-30 of copending Application No. 18/299,317 (US 2023/0240287). Although the claims at issue are not identical, they are not patentably distinct from each other because the pending invention allows for the surfactant to be selected from an alkylpolyglucoside and the amounts of alkylpolyglucoside and cosurfactant is preferably 1% or more based on the total weight of the composition. The liquid formulation limitation encompasses a suspension [0020]. Therefore, the claims are prima facie obvious in view of the copending claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed 12/1/2025 have been fully considered but they are not persuasive. Applicant has failed to address the rejection and has held the rejection in abeyance. Therefore, the rejection is maintained.
Maintained 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 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.
Claims 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over Bean (WO 00/49873; published August 31, 2000) as evidenced by Bradai (Risk Assessment of Linear Alkylbenzene Sulfonate (LAS) Based on Molecular Biomarkers May 2014).
Applicant’s Invention
Applicant claims a liquid composition comprising
30 wt.% of the composition water,
one or more electrolyte agrochemicals dissolved in the water in a total amount of 20 wt.% of the water,
a surfactant system comprising;
2-6 wt.% of the composition alkylpolyglucoside surfactant and
2-6 wt.% of the composition cosurfactant selected from Formula 9 to 14, and
one or more agrochemicals suspended in the water.
Determination of the scope and the content of the prior art
(MPEP 2141.01)
With respect to claims 1-6 and 8-12 of the instant application, Bean teach a storage-stable aqueous agrochemical concentrate formulation comprising a) an agrochemical electrolyte such as glyphosate, b) a water-insoluble agrochemical system such as diuron, C) and alkylglycoside and d) a co-surfactant that interacts with the alkylglycoside to form a structured aqueous system (abstract). The water-insoluble herbicides can include diuron, bensulfuron, chlorimuron, chlorsulfuron, methsulfuron, mesotrione, thifensulfuron and nicosulfuron (page 5, lines 1-5). The water-insoluble is prepared as a finely divided suspension prepared by milling the solid agrochemical in water (page 5, lines 8-13). The alkylglycoside includes alkylglucosides of formula I, wherein n is 1-3 and R5 is a branched or straight C4-C18 alkyl groups (page 6, lines 1-13).
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The formulations further include a minor proportion of an ionic surfactant which increases the amount of structuring at high temperature and lowers the amount of alkylglycoside and co-surfactant needed to produces stable formulations (page 6, lines 14-21). The ionic surfactants (component e) include cationic, anionic and amphoteric surfactants including alkyl sulfates, alkyl sulphosuccinates, alkyl phosphates and alkylbenzene sulphonates and their derivatives having at least one long chain alkyl or alkenyl substituent (page 6, line22 through page 7, line 7). The electrolyte is preferably glyphosate in a concentration of greater than 120 g/L, preferably greater than 330 g/l (page 7, lines 13-22). The ionic surfactant is preferably 0 to 1 part by weight per 1 part by weight alkylglycoside (page 8, lines 5-9). The inventive formulations comprises 200 g/L (20% wt/vol.) glyphosate trimesium, 200 g/L diuron, 20 g/l Arquad 16-29 (component e), 98 g/l Agrimul PG2067 (alkylpolyglycoside where R5 is a mixture of octyl and decyl), 28 g/L octanol and water to 1 liter (page 10, lines 16-30; Example 2, page 11, lines 12-15). Additionally, a formulation comprising 350 g/L (35% wt/vol.) glyphosate trimesium, 100 g/L diuron, 10 g/l Arquad 16-29 (component e) and additional amount of component e) is added to progressively improve stability 20, 30 and 40 respectively), 35 g/l Agrimul PG2067 (alkylpolyglycoside where R5 is a mixture of octyl and decyl), 10 g/L octanol and water to 1 liter (Example 3 page 14, lines 5-17).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Bean et al. teach alkylbenzene sulphonates which encompass the class of Formula 9, alkyl sulphosuccinates which encompass the class of Formula 11 and other ionic surfactants which encompass Formulas 10 and 12-14.
Bradai teach linear alkylbenzene sulfonates have the formula below (page 6) which encompasses claimed Formula 9.
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Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings Bean to form a liquid suspension comprising one or more agrochemicals which are suspended in water and a co-surfactant that is alkylbenzene sulfonate of formula 9 with a reasonable expectation of success. One of ordinary skill would have been motivated before the time of filing to combine the teachings of Bean to form a suspension comprising an active ingredient and a co-surfactant that is selected from alkylbenzene sulfonate because Bean teach the water-insoluble herbicide is prepared as a finely divided suspension and the formulations further include a minor proportion of an ionic surfactant selected from alkylbenzene sulfonates to increase the amount of structuring at high temperature and lower the amount of alkylglycoside and other co-surfactant needed to produce a stable formulation.
Response to Arguments
Applicant's arguments filed 12/01/2025 have been fully considered but they are not persuasive. Applicant argues Bean provides no concrete examples of a surfactant system comprising alkylbenzene sulfonates and the only Example provided by Bean uses hexadecyl trimethyl ammonium chloride so there would be no way of knowing how alkylbenzene sulfonates would compare to the examples. The Examiner is not persuaded by this argument because Bean teach storage-stable aqueous agrochemical concentrate formulation comprising a) an agrochemical electrolyte such as glyphosate, b) a water-insoluble agrochemical system such as diuron, C) and alkylglycoside and d) a co-surfactant that interacts with the alkylglycoside to form a structured aqueous system (abstract). The rationale to support a conclusion that the claim would have been obvious is that all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. KSR, 550 U.S. at 416, 82 USPQ2d at 1395. Bean teach that the formulations further include a minor proportion of an ionic surfactant which increases the amount of structuring at high temperature and lowers the amount of alkylglycoside and co-surfactant needed to produces stable formulations (page 6, lines 14-21). These ionic surfactants alkylbenzene sulphonates (page 6, line22 through page 7, line 7). Therefore, one of ordinary skill would have been motivated to include alkylbenzene sulphonates into the alkylglycoside surfactant system to increase structuring at high temperature and lower the amount of alkylglycoside needed. Furthermore, disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971).
Next, applicant argues that the formulations of Bean do not improve stability and that Bean does not teach success in improving stability with other surfactant systems. The Examiner is not persuaded by this argument for the reasons set forth in the above response. Additionally, the claims are not drawn to a method of improving stability. The claims are drawn to a composition. Bean teaches the it would have been prima obvious to combine alkylbenzene sulphonates into alkylglycoside surfactant systems to increase structuring at high temperature and lower the amount of alkylglycoside needed. Furthermore, disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971).
Conclusion
No claims 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 DANIELLE D JOHNSON whose telephone number is (571)270-3285. The examiner can normally be reached Monday-Friday 9:00 am-5:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany Barham can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
DANIELLE D. JOHNSON
Examiner
Art Unit 1617