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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 09/05/2025 has been entered.
Status of the Claims
Pursuant to the amendment dated 09/05/2025, claims 4-6, 10, 11, and 21-25 have been cancelled. Claims 1-3, 7-9, 12-20 are pending. Claims 8 and 12-18 stand withdrawn.
Claims 1-3, 7, 9, 19 and 20 are under current examination.
The claims are examined in view of the following species elections: glufosinate, clomazone, and flumioxazin.
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 1-3, 7 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Massa et al. (WO 2016/113334; publication date: 07/21/2016; cited in the IDS filed 06/30/2021), and further in view of Hacker et al. (US 8,536,094; issue date: 09/17/2013).
Massa discloses that saflufenacil and glufosinate show synergy when combined with a third herbicide (see tables on pages 54-69. Massa also discloses that saflufenacil + glufosinate + flumioxazin show synergy, and that clomazone is also suitable to incorporate into their herbicidal mixture (see claim 8).
Massa does not provide a particular reason to select clomazone from among the agrochemicals disclosed therein.
Hacker discloses combinations with glufosinate (referred to as A1) and foliar- and soil-acting herbicides (referred to as B2). In table 4, col 22, Hacker discloses that clomazone (B1.12) shows some synergy with glufosinate (predicted efficacy 65.6; actual efficacy 70).
It would have been prima facie obvious to use clomazone as the additional herbicide in Massa’s invention. The skilled artisan would have been motivated to select clomazone to combine with glufosinate and flumioxazin because it had been shown to act synergistically with glufosinate. The artisan of ordinary skill would have had reasonable expectation of success because Massa indicates clomazone to be suitable for inclusion in their invention.
The resulting composition would contain glufosinate, clomazone, and flumioxazin, as required by instant claims 1-6.
With regard to claim 7, the composition may contain e.g. surfactants (page 45), i.e. an agrochemically acceptable excipient (0030).
With regard to claim 9, the resulting composition would also contain saflufenacil, which is an herbicide.
With regard to the ratios recited in instant claims 1 and 7, the prior art teaches synergy or herbicidal benefit among the ingredients (see all tables in Massa and Hacker, table 4). It would merely have been a matter of routine for one of ordinary skill to optimize the concentrations of each ingredient to provide synergistic weed control for any particular species of weed. See MPEP 2144.05.
Claims 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Massa et al. (WO 2016/113334; publication date: 07/21/2016; cited in the IDS filed 06/30/2021), and further in view of Hacker et al. (US 8,536,094; issue date: 09/17/2013) as applied to claims 1-3, 7 and 9 above, and further in view of Bell et al. (US 2011/0200571; publication date: 08/18/2011).
The relevant disclosure of Massa and Hacker are set forth above and together render obvious a herbicidal combination comprising: glufosinate, clomazone, and flumioxazin, wherein the combination is present in a weight ratio of glufosinate : clomazone:flumioxazin of about 1.0 : 0.12-0.175 : 1.2-1.25, and wherein said combination provides synergistic control of Brachiaria decumbens, Ipomoea grandifolia, and Euphorbia heterophylla in pre-emergent and post-emergent applications.
Massa and Hacker do not disclose a kit with instructions on how to use the components of the invention.
Bell, in the analogous art of agrochemical compositions and methods of treating agents that are harmful to plants, discloses a kit with instructions for use (0097) containing the agrochemicals.
It would have been prima facie obvious to arrange Massa’s invention as a kit. One having ordinary skill in the art would have been motivated to do to improve efficiency. The skilled artisan would have had reasonable expectation of success because this is routine in the agrochemical arts.
Response to Arguments
Applicant's arguments filed 09/05/2025 have been fully considered but they are not persuasive.
On page 7, Applicant argues that neither Massa nor Hacker expressly teaches or suggests the specific three-way combination of glufosinate, clomazone, and flumioxazin. Applicant argues that these agents are broadly disclosed, but Massa does not exemplify or provide any data for the particular trio of glufosinate, clomazone, and flumioxazin, nor does it teach or suggest this specific compilation would yield any unexpected or superior results. Applicant argues that the mere listing of clomazone among a large group of possible third herbicides is insufficient to render the claimed composition obvious. Applicant asserts that one having ordinary skill would not have been motivated to select this specific trio absent a teaching or suggestion of its particular advantages.
With regard to the comment that the artisan of ordinary skill lacked direction to select the specifically claimed herbicides, the examiner respectfully disagrees. As noted in the rejection, Massa discloses that two of the three claimed agents, glufosinate and flumioxazin show synergy. The disclosure that clomazone acts synergistically with glufosinate would have motivated one of ordinary skill in the art to select clomazone from among the additional herbicides mentioned by Massa and to explore this interaction further. This argument ignores the rationale underlying the obviousness conclusion, which is based upon teachings contained in two references. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Insomuch as this may be an assertion of unexpected results, please see the examiner’s detailed response to Applicant’s allegation of unexpected results below.
On page 8, Applicant argues that Hacker demonstrates synergy between glufosinate and clomazone but does not teach or suggest the addition of flumioxazin to this pair. Applicant argues that the synergy between glufosinate and clomazone is modest.
The examiner maintains the opinion that this would provide one of ordinary skill in the art to further explore the potential for clomazone to synergize with glufosinate.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
On page 8, Applicant describes data contained in the instant specification as showing unexpectedly superior and synergistic weed control.
Applicant’s assertion of unexpected results has been fully addressed on pages 6-8 of the Office action mailed 06/05/2025. It is replicated here for convenience:
In order to overcome an obviousness rejection with a persuasive showing of unexpected results, Applicant must establish an unexpectedly superior feature of the claimed invention in a side-by-side comparison to the closest prior art. In this case, the closest prior art, Massa, discloses a synergistic combination of glufosinate and flumioxazin that also contains saflufenacil and to which clomazone may be added. A secondary reference establishes that glufosinate and clomazone also behave synergistically together. Insufficient information is provided in the specification for the examiner to evaluate whether or not one of ordinary skill would have found the data to be unexpected. The specification reports the calculated and actual efficacy in a field trial of several concentrations of glufosinate, flumioxazin, and clomazone against Brachiaria decumbens, Euphorbia heterophylla, and Ipomoea grandifolia and Example 2 reports results against Conyza spp and Cenchrus echinatus. The efficacy of the individual substances is not reported. As synergy has been reported among the claimed combinations, specifically combinations of glufosinate and flumioxazin as well as glufosinate and clomazone, the contribution of these known synergistic combinations to the synergy reported in the specification must be evaluated in order to determine whether the data described in the specification would truly have been unexpected to one of ordinary skill. That is to say, the artisan of ordinary skill would have predicted that a combination of flumioxazin and glufosinate would show synergy and would have expected that a combination of clomazone and glufosinate would have shown synergy. It is not clear that the additional claimed herbicide provides any synergy beyond that observed for these known synergistic combinations; i.e. the data of record does not establish that the synergy reported in the specification is unexpectedly superior to the previously reported synergy between flumioxazin and glufosinate or the synergy between clomazone and glufosinate that had already been recognized in the prior art.
Applicant’s comment on page 9 that “Hacker shows only modest synergy between glufosinate and clomazone, with a predicted efficacy of 65.6% versus an actual efficacy of 70%. This minor improvement falls far short of the surprising and markedly better synergistic effects demonstrated by the claimed combination.” is noted. The examiner points out that the majority of combinations identified in the specification as synergistic show comparably modest differences between the expected and observed weed control. The examiner considers Hacker’s disclosure of synergy between clomazone and glufosinate to provide sufficient motivation for one of ordinary skill to explore other concentrations or target weeds that might benefit from treatment with the combination.
The examiner notes that the data are commensurate in scope with the claims as of the response filed 09/05/2025.
On page 9, Applicant argues that the examiner’s reliance on picking and choosing is misplaced and the prior art’s generic disclosure of possible combinations does not render the specific, non-obvious trio claimed here obvious, especially in the absence of teaching, suggestion, or reasonable expectation of success. Applicant argues that the data establish that the claimed combination yields an unexpectedly and practically significant improvement over the closest prior art, and the claim is properly limited to the scope of the demonstrated invention.
As explained previously, the Examiner directs attention to Merck &Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Circ. 1989), which states with regards to its more than 1200 combinations: that the prior art “discloses a multitude of effective combinations does not render any particular formulation less obvious. This is especially true because the claimed composition is used for the identical purpose taught by the prior art.” Furthermore, it is noted that Applicants do not identify any secondary consideration demonstrating criticality or anything unexpected about the combination of two known prior art pharmaceutical agents.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE PEEBLES whose telephone number is (571)272-6247. The examiner can normally be reached Monday through Friday: 9 am to 3 pm.
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/KATHERINE PEEBLES/ Primary Examiner, Art Unit 1617