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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 07/09/2025 has been entered.
Status of Application
Applicants' arguments/remarks filed 07/09/2025 are acknowledged. Claims 1-17 are canceled. Claims 18-23 are newly added. Claims 18-23 are examined on the merits within and are currently pending.
New 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 18-19, 21-23 are rejected under 35 U.S.C. 103 as being obvious over Clapperton (WO 2020127931 A1) in view of Bagwell et al. (WO 2019/020283 A1).
Claim 18,
Clapperton teaches a liquid agrochemical composition comprising (a) one or more electrolyte agrochemicals dissolved in the water, (b) an ethoxylated fatty alcohol phosphate ester surfactant; (c) a co-surfactant (Abs), and water-soluble inorganic fertilizers that form electrolyte solutions in water (pg. 9, 1st, 2nd and 3rd pars.).
a) The most preferred water-soluble electrolyte herbicides are glufosinate-ammonium ((RS)-2-Amino-4-(hydroxy(methyl)phosphonoyl)-butanoic acid), 2,4-D ((2,4-Dichlorophenoxy) acetic acid). The glufosinate type of herbicides are phosphinyl amino acids such as glufosinate [2-amino-4-(hydroxymethylphosphinyl) butanoic acid], particularly useful as the ammonium salt. (pg. 8, 2nd par.). One or more electrolyte agrochemicals are dissolved in the water that is contained in the liquid agrochemical composition. The total amount of electrolyte agrochemicals dissolved in the water is 20 wt.% or more based on the total weight of water in the liquid agrochemical composition. (pg. 6, 3rd par.).
(b) The ethoxylated fatty alcohol phosphate ester, (which is a non-hydrotrope phosphorus derivative), has a structure according to Formulae IIIa and/or IIIb:
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where M1 and M2 are a cation, preferably independently selected from H+, Na+, K+, or NH4+, n is an integer from 1 to 20 or 2 to 12 and R is C6-C22 or C8-C18 straight- or branched-chain alkyl or alkenyl group, (pg. 14-16, a-3). Formula Illa and Formula Illb in the composition is preferably 10.0 wt.% or less based on the weight of the liquid agrochemical composition. (pg. 15, 2nd last par.).
(c) A surfactant system comprising: (a) an alkylpolyglucoside surfactant and/or an alkyl glucamide ester surfactant (pdf pg. 12, a-1 and pg. 13, a-2). The total amount of alkyl polyglucoside surfactant is preferably present in the composition in an amount of 10.0 wt.% or less based on the weight of the liquid agrochemical composition. (pg. 12, last par.).
(d) And among water-soluble fertilizers that form electrolyte solutions in water are the common water-soluble inorganic fertilizers that provide nutrients such as nitrogen, phosphorus, potassium. Examples of such fertilizers include: for nitrogen as the nutrient: nitrates and or ammonium salts such as amomum nitrate, calcium ammonium nitrate; for potassium as the nutrient: potassium chloride. (pdf pg. 9, 1st- 3rd pars.). Other water-soluble nutrient containing compounds ( commonly identified as "micronutrients") may also be included in the compositions e.g. to provide minor or trace nutrients to the formulation. Similarly, water soluble buffering and chelating agents such as ammonium and alkali metal citrates, gluconates, lactates, and polyacrylates may be included as part or all of the electrolyte component of the formulation. It would be obvious their amount can be less than 10% or less than 5%.
Clapperton does not teach that the composition of claim 18 comprising an L-glufosinate salt.
Bagwell et al. teach the composition comprising a herbicidally effective amount of L-glufosinate and/or agronomically acceptable salts thereof; one or more surfactants (pdf pg. 16, last par.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to formulate the liquid agrochemical composition, comprising a surfactant system, with glufosinate salt, a non hydrotrope phosphorus derivative, polyethylene glycol monotridecyl ether phosphate; an alkyl polyglycoside, and an electrolyte potassium chloride with ingredients’ percentages taught by Clapperton, wherein the glufosinate is the effective L-glufosinate taught by Bagwell et al. since they have proven these ingredients with their percentages are able to form stable glufosinate formulation.
With regard to claim 19,
Bagwell et al. teach that for use, the formulations, which are present in commercially available form, are optionally diluted in the customary manner, for example using water in the case of wettable powders, emulsifiable concentrates, dispersions and water-dispersible granules. Preparations in the form of dusts, soil granules, granules for broadcasting and sprayable solutions are usually not diluted further with other inert substances prior to use. (pdf pg. 28, line 4-7). Certain compositions as defined and used in the context of the present invention exhibit the desired herbicidal activity profile and are able to control harmful plants or unwanted vegetation in a more effective and more efficient manner, and at the same time cause less unwanted damage (i.e. less phytotoxicity) and/or unwanted reduced harvest yields of glufosinate tolerant field crops. (pg. 2, line 11-14).
With regard to claim 21,
Bagwell et al. teach L-Glufosinate employed in the context of the present invention may be used in the form of the respective agronomically acceptable salts, in particular as alkali metal salts, alkaline earth salts or ammonium salts. (pg. 15, 2nd last par.).
With regard to claim 22,
Clapperton teaches one or more agrochemicals suspended in the water (Abs). Combinations of water-soluble electrolyte agrochemicals with other water-soluble electrolyte agrochemicals can be used in the invention and it is preferable to combine herbicide with herbicide, fungicide with fungicide, plant growth regulator with plant growth regulator, etc.). Suitable herbicide combinations include glyphosate-potassium; glyphosate-sodium; glyphosate -diammonium or other glyphosate salt forms. (pg. 10, 1st par.).
With regard to claim 23,
Clapperton teaches for agrochemicals that are insoluble or not fully soluble in water, it is typical to prepare liquid compositions by dissolving the agrochemical in an organic water-immiscible solvent, such as an aromatic hydrocarbon or a more polar ester solvent. (pg. 1, 2nd last par.). Aqueous liquid compositions of agrochemicals can be prepared. In the case of water-soluble agrochemicals, the agrochemical can be dissolved in the aqueous phase. If the agrochemical is not soluble in water, it can be suspended as solid particles or as liquid droplets ( e.g. oil-in water emulsion). To suspend particles or droplets it is necessary to incorporate a water-soluble polymer ( e.g. xanthan gum). Structured surfactants (i.e. surfactant phases which impart anti-settling characteristics to the aqueous phase) can be used (pg. 1, last par.) to suspend particles and droplets. Where it is desirable to include more than one agrochemical in a liquid composition, one or more agrochemicals can be dissolved in the aqueous phase and one or more agrochemicals can be suspended in the aqueous phase. (pg. 2, 1st par.).
Bagwell et al. teach polar organic solvents, preferably polar organic solvents of substantial or unlimited miscibility with water which are suitable for preparing a single-phase aqueous solution. These preferably are selected from the group consisting of propylene glycol monomethyl ether, propylene glycol, di-propylene glycol, glycerol, iso-propanol, and tetrahydrofurfuryl alcohol. (pg. 22, lines 21-25).
Claims 18-19 and 20 are rejected under 35 U.S.C. 103 as being obvious over Clapperton (WO 2020127931 A1) in view of Bagwell et al. (WO 2019/020283 A1) as described in claims 18-19 above, further in view of Fritz et al., (Fritz et al., Effects of Spray Mixtures On Droplet Size Under Aerial Application Conditions and Implications On Drift, Applied Engineering In Agriculture, Vol. 26(1): 21‐29.
The teachings of Clapperton and Bagwell et al. are described in claims 18-19 above.
Clapperton and Bagwell et al. do not teach the composition, wherein the spray solution of the agrochemical liquid composition has a dynamic surface tension of less than 60 mN/m at a surface age of 20-50 milliseconds.
Fritz et al., teach Effects Of Spray Mixtures On Droplet Size Under Aerial Application Conditions and Implications On Drift. (Title). There is a concerted effort within the spray application industry to develop and implement a Drift Reduction Technology (DRT) Program, which would encourage applicators to adopt technologies that are shown to mitigate off‐target movement of sprays. (Abs). droplet sizing study.
Fritz et al. measured dynamic surface tension of two different formulations, 1. Low Mole Amine (Same formulation of the PowerMax solution without the glyphosate) and 2. The PowerMax solution was selected due to several glyphosate‐based herbicide drift incidences. The PowerMax and Low Mole Amine (LMA) solution were mixed at spray application rates of 18.7 and 46.8 L/ha (2 and 5 gpa) to investigate the effects of diluting with water. Even though the composition was not with glufosinate salt composition, the Dynamic Surface Tensions are 39.6-49.6 mN/m @ 20 m/s. (pg. 21, left col., 1st par. and Table 1, pg. 24).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to formulate the liquid agrochemical composition, comprising a surfactant system, with glufosinate salt, a non hydrotrope phosphorus derivative, polyethylene glycol monotridecyl ether phosphate; an alkyl polyglycoside, and an electrolyte potassium chloride with ingredients’ percentages taught by Clapperton, wherein the glufosinate is the effective L-glufosinate and to be able to dilute to a spray solution, taught by Bagwell et al. and to have a dynamic surface tension of 39.6-49.6 mN/m @ 20 m/s taught by Fritz et al. since they have proven the composition is stable to dilute to spray with certain surface tension range.
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 18, 22-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1, 2 and 4 of copending Application No. 19175204 (US 20250261634 A1). Although the claims at issue are not identical, they are not patentably distinct from each other because they share similar limitations of active ingredients and excipients and the percentages of these active ingredients 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 USC 103:
Applicants argue that all rejected claims 1-17 are canceled. Claim 18, as presented by the Applicant is directed to specific combinations of specific ingredients with defined ratios. The combination of references, as presented, do not establish or predict the combinations and ratios as defined and claimed by the Applicant. The universe of possible counter-ions for glufosinate is vast. Nothing in the art narrows the choices to the narrow handful now claimed, nor suggests that the claimed particular salt would maintain the required performance. Thus there was no finite, identified, predictable set of alternatives from which a person of ordinary skill in the art could simply "pick" the claimed ions. In view of the foregoing, a prima facie case of obviousness has not been established since the Office has failed to meet the burden of establishing that all elements of the invention are disclosed in the prior art. Accordingly, the rejection is requested to be withdrawn for at least this reason.
Applicant's arguments have been fully considered but they are not persuasive with new and modified rejections of the claims above. In response to applicant's argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, in claim 18, Clapperton teaches all ingredients and their percentages. Also, in the claim 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). And even though Clapperton do not teach L-glufosinate, its claimed range should be applicable for L-glufosinate, taught by Bagwell et al. with the basis for 103 rejection is that no one reference has to teach all the claim limitations for an obviousness rejection and therefore several references are combined to render the claims obvious. One with ordinary skill in the art can learn from and select specific parts of several prior arts’ teachings before the effective filing date of the invention to achieve better outcome results even though some prior arts may teach more and may teach different things.
Conclusion
No claim is allowed.
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/NGOC-ANH THI NGUYEN/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615