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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 10/29/2025 has been entered.
Status of Application
Applicants' arguments/remarks filed 10/29/2025 are acknowledged. Claim 1 is amended. Claims 11-12 are newly canceled. Claim 1, 4, 13-14 and 16 are currently pending and are examined on the merits within.
Withdrawn Rejections
With applicants' amendment, filed 10/29/2025, and with respect to the applicant’s arguments/remarks:
The 35 U.S.C. 103 rejections of claims 11-12 have been withdrawn in view of the claim cancellation;
The 35 U.S.C. 103 rejections of claims 1, 4, 11 and 16 over Long and Sakamoto et al. has been withdrawn in view of the amendment of claim 1;
Claim Objections
Claim 1 is/are objected to because of the following informalities: “tiem”. It should be “time”. Appropriate correction is required.
Modified Rejections
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 non-obviousness.
Claims 1, 4, 13-14 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Long
(U.S. 20100022392 Al) in view of Sakamoto et al. (US 5,308,827 A) and Dayan et al. (WO 2021151733 Al).
Claim 1: Long teaches preparation of (0046) a liquid (0004) herbicidal composition
comprising: a water-soluble herbicidal ingredient; glufosinate salt (0002), an organic solvent;
and a surfactant (abs). The L enantiomer has been observed to be the biologically active isomer. The composition is intended to encompass all the biologically active enantiomer, the L enantiomer of glufosinate and its ammonium salt or other salts such as potassium, sodium, in each case (0019). The composition comprises an organic solvent including glycerol or propylene glycol (0023).
Long does not teach a liquid surfactant selected from alcohol ethoxylate, alkyl ether phosphate, alkyl aryl ether phosphate, sulfosuccinate and its derivative, or mixtures thereof and Long does not prepare a dispersion in the absence of water and admixing the dispersion with water to produce a clear homogenous liquid herbicidal composition.
Sakamoto et al. teach Glufosinate herbicidal composition comprising an nonionic surfactant(s), a solvent, and a surfactant. (Abs). The solvent can be 1-methoxy-2-propanol (Col. 3, line 29). The surfactants can be an alkaline salt of alkyl sulfosuccinic acid, (Col. 2, line 50), or polyoxyethylene sorbitan fatty acid ester (Col. 3, line 6-7). The Examples are preparations of herbicidal compositions applied by an aerosol container. A herbicide and a surfactant
were mixed to give a homogeneous solution or a suspension an antifreeze and a stabilizer. The mixture became a uniform liquid or a suspension. A diluent (water) was added thereto to obtain a uniform emulsion. (Col. 5, line 55-65).
Long teaches the ingredients were mixed together in a suitable vessel at room temperature and were observed at room temperature. (0046).
Long and Sakamoto et al. do not teach the processing time required for said admixing to obtain the liquid herbicidal composition is less than 2 hours.
Dayan et al. teach methods producing specific herbicide combinations comprising L-glufosinate and/or salts thereof and comprises another active ingredient, a second herbicide, an
organic solvent, a surfactant, and water. This mixture is stirred for 1 h to produce spontaneously
a thermodynamically stable microemulsion (Example 9th. Microemulsion, pg. 20).
It would have been obvious to one of ordinary skill in the art before the effective filing
date of the claimed invention to produce a liquid herbicidal composition comprising:
comprises single isomer of glufosinate salt; with organic solvents like glycerol or propylene glycol or a liquid surfactant taught by Long, and the solvent can be 1-methoxy-2-propanol and the surfactant can be an alkaline salt of alkyl sulfosuccinic acid, or polyoxyethylene sorbitan fatty acid ester and the composition is prepared by mixing surfactant and glufosinate, then adding water, taught by Sakamoto et al., and with the processing time taught by Dayan since it would be more suitable and informative to do so.
With Regard to Claim 4,
Long teaches the L enantiomer has been observed to be the biologically active isomer. The formula therefore is intended to encompass the biologically active enantiomer
in each case, the L enantiomer of glufosinate and its ammonium salt or other salts such as
potassium or sodium (0019).
With Regard to Claims 13-14,
Long does not teach composition according to claim 1, further comprises another active ingredient/s selected from fungicides, insecticides, herbicides, plant regulators, defoliants, desiccants, biostimulants and nitrogen stabilizers, or mixtures thereof.
Sakamoto et al. teach another herbicide can be included like Glyphosate or Bialaphos. (Abs).
Dayan et al. teach various types of further pesticides (e.g., herbicides, insecticides,
fungicides, growth regulators) may be added to specific herbicide combinations comprising L-glufosinate and/or salts thereof and comprises another active ingredient, a second herbicide, an
organic solvent, a surfactant, and water (The invention also relates to an herbicidal formulation,
which comprises a herbicidally active mixture as defined herein and at least one carrier material,
including liquid and/or solid carrier materials., par. 2).
Dayan et al. teach the present invention further relates to a method of producing said specific herbicide combinations and compositions comprising said specific herbicide combinations saflufenacil (Abs. and Description par. 1).
With Regard to Claim 16,
Long teaches the preparation process of various herbicidal compositions (0046), which comprises a liquid (0004) herbicidal composition comprising: a water-soluble herbicidal ingredient; glufosinate salt (0002), especially the biologically active L enantiomer
(0019), an organic solvent, (0023), or a surfactant, (0002), and water. (0020).
Sakamoto et al. teach Glufosinate herbicidal composition comprising, a solvent, and/or a surfactant, and water is added as a diluent. (Abs)
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.
Claim 1 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 4, 6, 7, 8, 10 and 11 of copending Application No. 18869876 (US 20250320239 A1). Although the claims at issue are not identical, they are not patentably distinct from each other because they have similar ideas, herbicidal glufosinate, solvents and excipients.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Claim Rejections Under 35 U.S.C. § 103
Applicant argue that The amended claims now expressly recite that the process for producing the liquid herbicidal composition is carried out at a temperature below 100°C and is completed in less than 2 hours. These limitations are directly supported by the specification are not taught, suggested, or rendered obvious by the cited prior art references-Long, Sakamoto, and Dayan.
First, none of the cited references disclose or suggest any temperature limitation for the process of preparing a liquid herbicidal composition containing L-glufosinate salt, solvent, and surfactant. The processes described in Long, Sakamoto, and Dayan are general in nature and do not specify the temperature at which the mixing or admixing steps are performed. In contrast, the present invention requires that the process be conducted at a temperature below 100°C, which is critical for avoiding undesirable physical changes such as rock-solid lump formation and for ensuring the stability and homogeneity of the final composition.
Applicant's arguments have been fully considered and they are not persuasive because Applicant recites in Claim 1, “admixing the dispersion with water at a temperature less than 100°C to produce a clear homogenous liquid herbicidal composition”, which exactly limitations Long teaches the temperature to prepare the formulation at room temperature, which is below 100°C, and within the range applicant recited, to provide a stable, single-phase formulation.
Second, the limitation that the process is completed in less than 2 hours is a further distinguishing feature that is not taught or suggested by the cited references. The prior art
does not disclose any specific processing time for obtaining the final herbicidal composition.
In fact, the specification provides comparative data (see Comparative Example 1, paragraphs
[0134]-[0137]) showing that conventional processes, which do not follow the claimed
sequence and do not avoid rock-solid lump formation, require significantly longer processing
times-up to 200 minutes or more. The present invention achieves unexpectedly rapid
processing, with the finished composition obtained in less than 2 hours, as supported by
multiple examples in the specification ([0058], [0110], [0118], [0120], [0121], [0123], [0125],
[0127], [0131], [0133]). This reduction in processing time is directly linked to the avoidance
of rock-solid lump formation and improved solubility of the L-glufosinate salt, which is not
recognized or addressed in the prior art. The prior art does not provide any teaching,
suggestion, or motivation to modify the process to achieve such rapid processing, nor does it
recognize the technical problem that the present invention solves.
Applicant's arguments have been fully considered and they are not persuasive because Dayan et al. teach methods producing specific herbicide combinations comprising L-glufosinate and/or salts thereof and comprises another active ingredient, a second herbicide, an
organic solvent, a surfactant, and water. This mixture is stirred for 1 h to produce spontaneously
a thermodynamically stable microemulsion (Example 9th).
Applicant argues that initial dispersion is "in the absence of water" is a key distinguishing feature. None of the cited references teach or suggest forming a water-free dispersion of L-glufosinate salt and solvent/surfactant prior to the addition of water. The prior art generally describes mixing all ingredients together, often in water, and does not recognize the technical benefit of excluding water from the initial dispersion. The present invention demonstrates that this step is essential for preventing the formation of rock-solid lumps and for ensuring rapid and uniform solubilization of the active ingredient. The prior art's silence on this process step means it neither teaches nor motivates the skilled person to adopt such a sequence.
Applicant's arguments have been fully considered and they are not persuasive because Sakamoto teaches an herbicide and a surfactant were mixed to give a homogeneous solution or a suspension followed by addition of other components such as an antifreeze and a stabilizer. The mixture became a uniform liquid or a suspension. A diluent (water) was added thereto to obtain a uniform emulsion or a suspension. (Col. 5, lines 59-66). Dylan also teaches to prepare Microemulsion (ME) 5-20 wt% of an inventive mixture are added to 5-30 wt% organic solvent blend (e.g. fatty acid dimethylamide and cyclohexanone), 10-25 wt% surfactant blend (e.g. alcohol ethoxylate and arylphenol ethoxylate, and water add 100 %. (pg. 20, lines 25-28).
Applicant argues that the process results in a clear homogenous liquid herbicidal composition.
The prior art references describe stable or uniform compositions but do not teach or suggest
the specific process steps and parameters required to reliably achieve a clear homogenous
liquid, especially in the context of L-glufosinate salt, which is prone to forming rock-solid
lumps when contacted with water. The present invention solves this technical problem
through the claimed combination of steps and parameters.
Applicant's arguments have been fully considered and they are not persuasive because applicant’s formulation of an active ingredient, with a solvent and a surfactant in water is a micelle solution or an emulsion or microemulsion. A stable micelle solution or an emulsion or microemulsion may appear homogeneous to the naked eye, but it is a heterogeneous mixture at a microscopic level, unlike a true solution. Dylan teaches microemulsion, which is an emulsion with very fine particles that can’t be seen by naked eyes, just like applicant’s formulation.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NGOC-ANH THI NGUYEN whose telephone number is (571)270-0867. The examiner can normally be reached Monday - Friday 8:00 am.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert A Wax can be reached at 571-272-0623. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/NGOC-ANH THI NGUYEN/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
Prosecution Insights