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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 July 2, 2025 has been entered.
Claims 1-16 are pending in the application. Claims 1 and 10 have been amended. Claims 1-16 will presently be examined.
Status of the Claims
The rejection of claims 1-7 and 14-16 under 35 U.S.C. 103 as being unpatentable over of Bruss et al. (WO 2017/083409) in view of Dahmen et al. (US 5,990,049) as evidenced by the Flumioxazin Monograph (Merck Index Online) and the Ammonium Sulfate Monograph (Merck Index Online) is withdrawn due to Applicant’s amendment of the claims.
The rejection of claims 8, 9, 10, 11, 12, and 13 under 35 U.S.C. 103 as being unpatentable over Bruss et al. (WO 2017/083409) in view of Dahmen et al. (US 5,990,048), as evidenced by the Flumioxazin Monograph and the Ammonium Sulfate Monograph as applied to claims 1-7 and 15-16 above, and further in view of Shroff et al. (US 2016/0174551) is withdrawn due to Applicant’s amendment of the claims.
The rejection of claim 14 under 35 U.S.C. 103 as being unpatentable over Bruss et al. (WO 2017/083409) in view of Dahmen et al. (US 5,990,048) as evidenced by the Flumioxazin Monograph (Merck Index Online) and the Ammonium Sulfate Monograph (Merck Index Online) as applied to claims 1-7 and 15-16 above, and further in view of Shroff et al. (US 2016/0174551) as applied to claims 8, 9, 10, 11, 12, and 13 and in further view of Sievernich et al. (US 2011/0065579), and Faers et al. (US 2018/0235208) is withdrawn due to Applicant’s amendment of the claims.
Rejections not reiterated from the previous Office Action are hereby withdrawn. The following rejections are newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Response to Arguments
Applicant’s arguments, see pages 4 and 5, filed July 2, 2025, with respect to the rejection(s) of claim(s) 1-16 under 35 U.S.C. 103 have been fully considered and are persuasive. Therefore, the rejections have been withdrawn. However, upon further consideration, a new grounds of rejection is made as indicated hereinbelow.
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.
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.
Claims 1, 4, 5, 6, 7, 8, 9 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over of Dahmen et al. (US 5,990,049) in view of Shroff et al. (US 2016/0174551) and the Ammonium Sulfate Monograph (Merck Index Online).
Applicant’s Invention
Applicant claims a homogenous aqueous herbicidal solution comprising: metribuzin; a salting-out agent; and polyvinyl alcohol. Applicant claims a method of controlling a weed comprising applying the composition of claim 1 to the weed or an area in need of weed control.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Regarding claim 1, Dahmen et al. teach a novel herbicidally active compound combination comprising (a) metribuzin of the formula (I) and (b) an active compound from the group of the substituted imidazo[1,2-a]pyridin-3-yl-sulfonyl compounds of the formula (II) (Abstract). Dahmen et al. teach the active compounds are converted to solutions (col. 4, lines 21-22). Dahmen et al. teach these formulations are produced in a known manner, liquid solvents and/or solid carriers, optionally with the use of surfactants, i.e. emulsifiers and/or dispersants and/or foam-formers (col. 4, lines 28-32). Dahmen et al. teach adhesives include polyvinyl alcohol (col. 4, line 63).
Dahmen et al. teach the new active compound combinations can also be used as mixtures with further known herbicides, finished formulations or tank mixes again being possible (col. 5, lines 16-19).
Regarding claims 5, 6, and 7, Dahmen et al. teach it may be advantageous for specific purposes to incorporate mineral or vegetable oils tolerated by plants or ammonium salts such as, for example, ammonium sulfate or ammonium thiocyanate, as further additives in the formulations (col. 5, lines 16-29).
Dahmen et al. additionally teach the weight ratios of the active compound are preferably 0.005 to 50 parts by weight, especially preferably 0.02 to 20 parts by weight (col. 4,lines 14-18). Metribuzin is an active compound.
Regarding claim 15, Dahmen et al. teach a method of controlling undesirable vegetation, comprising administering an herbicidally effective amount of an active compound comprising metribuzin and sulfosulfuron to the vegetation or to a locus from which it is desired to exclude the vegetation (col. 8, claim 4).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Dahmen et al. do not specifically disclose examples of the composition comprises a salting-out agent and polyvinyl alcohol or the salting-out agent is a salt having a molecular weight less than about 500 grams per mole and the water solubility of greater than about 20% w/w at a temperature from about 20 to about 25 degrees Celsius and wherein w/w denotes weight by total weight of the composition, as claimed in claim 4, the concentration of the salting-out agent, as claimed in claim 8, or the concentration of polyvinyl alcohol, as claimed in claim 9. It is for this reason Shroff et al. and the Ammonium Sulfate Monograph are added as secondary references.
Shroff et al. teach a composition comprising a) a microencapsulated pendimethalin and b) a suspension concentrate of a co-herbicide (page 15, claim 1). Metribuzin is a preferred co-herbicide (page 2, paragraph 35; page 3, paragraphs 47 & 48). Shroff et al. teach the alkali or alkaline earth metal salt of an organic acid is preferably selected from alkali or alkaline earth metal salt of a weak organic acid selected from acetic acid, citric acid, and tartaric acid (page 6, paragraph 107). The preferred alkali metal is selected from sodium and potassium (page 6, paragraph 108).
Regarding claims 5 and 6, Shroff et al. teach the alkali or alkaline earth metal salt of an organic acid is selected from sodium acetate or disodium succinate (page 6, paragraph 109).
Regarding claim 8, Shroff et al. teach the alkali or alkaline earth metal salt is in an amount of from about 2% to 55% by weigh to the formulation (page 6, paragraph 113).
Regarding claim 9, Shroff et al. teach the surfactant, polyvinyl alcohol, is present in the formulation about 0.2% to about 5% by weight of the formulation (page 6, paragraphs 110 and 112).
Shroff et al. teach the anti-foam agent is from about 0.01 to about 0.01% to about 5% by weight of the formulation (page 6, paragraph 119).
The Ammonium Sulfate Monograph evidences that ammonium sulfate has a molecular weight of 132.13 grams per mole (page 1, Molecular weight). Ammonium sulfate has a water solubility of 76.7 at 25°C (page 2, Properties).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine the teachings of Dahmen et al., Shroff et al., and the Ammonium Sulfate monograph and formulate a composition that comprises metribuzin, a salting-out agent and polyvinyl alcohol. Dahmen et al. teach a novel herbicidally active compound combination comprising (a) metribuzin of the formula (I) and (b) an active compound from the group of the substituted imidazo[1,2-a]pyridin-3-yl-sulfonyl compounds of the formula (II). Dahmen et al. teach the active compounds are converted to solutions. Solutions are homogenous. Dahmen et al. teach it is advantageous for specific purposes to incorporate ammonium salts such as ammonium sulfate, as further additives in the formulations that comprise metribuzin. Dahmen et al. also teach the inclusion of polyvinyl alcohol in compositions comprising metribuzin. One of ordinary skill in the art would have been motivated to use the known auxiliaries customarily used in the crop protection art, such as, ammonium sulfate and polyvinyl alcohol, as taught by Dahmen et al. As such, the skilled artisan would have been motivated to combine the salting-out agent, ammonium sulfate, and polyvinyl alcohol, known agrichemical additives to metribuzin to control weeds with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
Regarding the limitation of claim 4, it would have been obvious to one of ordinary skill in the art that the salting-out agent is a salt having a molecular weight less than about 500 grams per mole and a water solubility of greater than about 20% w/w at a temperature from about 20 to about 25 degrees Celsius and wherein w/w denotes weight by total weight of the composition. Dahmen et al. teach it is advantageous to incorporate ammonium sulfate in compositions comprising metribuzin. The Ammonium Sulfate monograph evidences that ammonium sulfate has a molecular weight of 132 grams/mole, which is a molecular weight of less than about 500 grams per mole. The Ammonium Sulfate monograph also evidences that the water solubility of ammonium sulfate at 25°C is 76.7, which is greater than 20% w/w at a temperature from about 20 to about 25 degrees Celsius. As such, as evidenced by the Ammonium Sulfate monograph the salting-out agent, ammonium sulfate, taught by Dahmen et al., has a molecular weight less than about 500 gram per mole and a water solubility of greater than about 20% w/w at a temperature from about 20 to about 25 degrees Celsius and wherein w/w denotes weight by total weight of the composition. Thus, since both the instant application and the prior art disclose the same salts, then the properties associated with the instant application would be present in the ammonium sulfate of the prior art, as evidenced by the Ammonium Sulfate Monograph.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine the teachings of Dahmen et al., the Ammonium Sulfate Monograph, and Shroff et al., and use the concentrations of metribuzin, the salting-out agent and polyvinyl alcohol as claimed in claims 8 and 9, as a matter of routine experimentation and optimization. One of ordinary skill in the art would have been motivated to use varying amounts of the components of the composition to formulate effective herbicidal compositions. Dahmen et al. teach that metribuzin is preferably 0.005 to 50 parts by weight, especially preferably 0.02 to 20 parts by weight.
Regarding the amount of salting-out agent and the polyvinyl alcohol, Shroff et al. teach that an alkali or alkaline earth metal salt is used in an amount of from about 2% to 55% by weight to the formulation and polyvinyl alcohol is present in the formulation about 0.2% to about 5% by weight of the formulation in compositions comprising metribuzin. As such, one of ordinary skill in the art would have been motivated to use teachings from prior art references as guidance to determine result effective formulations. The adjustment of particular conventional working conditions is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results, without evidence to the contrary.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Claims 2, 3, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Dahmen et al. (US 5,990,048) in view of Shroff et al. (US 2016/0174551) and the Ammonium Sulfate Monograph (Merck Index Online) as applied to claims 1, 4, 5, 6, 7, 8, 9 and 15 above, and in further view of Sievernich et al. (US 2011/0065579) and The Flumioxazin Monograph (Merck Index Online).
Applicant’s Invention
Applicant claims a homogenous aqueous herbicidal solution comprising: metribuzin; a salting-out agent; and polyvinyl alcohol. Applicant claims the composition further comprises a protoporphyrinogen oxidase inhibitor, flumioxazin. Applicant claims a method wherein the solution is applied sequentially or concurrently with a compound selected from the group consisting of glyphosate…2,4-D and mixtures thereof.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
The teachings of Dahmen et al., Shroff et al., and the Ammonium Sulfate Monograph are discussed herein above and are therefore applied in the instant rejection as discussed above.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Dahmen et al., Shroff et al., and the Ammonium Sulfate Monograph do not specifically disclose the composition further comprises flumioxazin or application sequentially or concurrently with a compound selected from the group consisting of glyphosate, glufosinate, dicamba…2,4-D and mixtures thereof. It is for this reason Sievernich et al. is added as a secondary reference.
Regarding claims 1, 3, and 16, Sievernich et al. teach compound 649 comprises herbicide C1, flumioxazin, herbicide C2, metribuzin and herbicide C3, dicamba (page 34, compound 649). Sievernich et al. teach that compound 629 comprises flumioxazin, and metribuzin (page 34, compound 629).
Regarding claim 16, Sievernich et al. teach the at least one herbicide A, the herbicide B and the optional at least one herbicide C can be applied simultaneously or in succession (pages 36 and 37, paragraph 27).
The Flumioxazin Monograph evidences flumioxazin has a melting point of 201.83-203.83°C and a water solubility of 1.79 mg/l (page 3, Properties).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine the teachings of Dahmen et al., Shroff et al., the Ammonium Sulfate Monograph, Sievernich et al. and Flumioxazin Monograph, and add flumioxazin to the composition comprising metribuzin. Dahmen et al. teach a novel herbicidally active compound combination comprising (a) metribuzin of the formula (I) and (b) an active compound from the group of the substituted imidazo[1,2-a]pyridin-3-yl-sulfonyl compounds of the formula (II). Dahmen et al. teach the active compounds are converted to solutions. Dahmen et al. teach it is advantageous for specific purposes to incorporate ammonium salts such as ammonium sulfate, as further additives in the formulations that comprise metribuzin. Dahmen et al. also teach the inclusion of polyvinyl alcohol in compositions comprising metribuzin. Dahmen et al. teach other herbicides can be added to the composition. Sievernich et al. teach that compound 629 comprises flumioxazin, and metribuzin. It would have been obvious to one of ordinary skill in the art to combine additional herbicides to the compositions taught by Dahmen et al. because Dahmen et al. specifically teaches that other herbicides can be added to the compositions. One of ordinary skill in the art would have been motivated to add flumioxazin to the composition because these compositions are taught by Sievernich et al. to control undesirable weeds. In view of In re Kerkhoven, 205 USPQ 1069 (C.C.P.A. 1980), it is prima facie obvious to combine two or more compositions each of which is taught by prior art to be useful for the same purpose in order to form a third composition that is to be used for the very same purpose. The idea of combining them flows logically from their having been individually taught in prior art, thus claims that requires no more than mixing together two or three conventional herbicides set forth prima facie obvious subject matter. Therefore, the skilled artisan would have been motivated to formulate the composition comprising metribuzin and flumioxazin as a herbicidal solution, with a reasonable expectation of success.
Likewise, in view of In re Kerkhoven, 205 USPQ 1069 (C.C.P.A. 1980), it is prima facie obvious to combine two or more compositions each of which is taught by prior art to be useful for the same purpose in order to form a third composition that is to be used for the very same purpose. The idea of combining them flows logically from their having been individually taught in prior art, thus claims that requires no more than mixing together two or three conventional herbicides set forth prima facie obvious subject matter. Therefore, the skilled artisan would have been motivated to formulate the composition comprising metribuzin, glyphosate, glufosinate, dicamba…2,4-D and mixtures thereof, as a herbicidal solution to control undesirable vegetation, with a reasonable expectation of success.
Regarding the limitation of claim 2, it would have been obvious to one of ordinary skill in the art that the PPO-inhibitor would have a melting point of about 100° C or greater and a water solubility of about 200 milligrams per liter or less, because flumioxazin, the herbicide taught by Sievernich et al., a PPO-inhibitor, has these properties as evidenced by the Flumioxazin Monograph. The Flumioxazin Monograph evidences flumioxazin has a melting point of 201.83-203.83°C, which is about 100°C or greater and a water solubility of 1.79 mg/l, which is about 200 milligrams per liter or less. Thus, since both the instant application and Bruss et al. teach flumioxazin as a herbicide in the composition, the properties associated with the instant application are present in the prior art, as evidenced by the Flumioxazin Monograph.
Regarding claim 16, wherein the composition is applied sequentially or concurrently with a compound selected from the group consisting of glyphosate, glufosinate, dicamba, 2, 4-D and mixtures thereof, Sievernich et al. teach the at least one herbicide A, the herbicide B and the optional at least one herbicide C can be applied simultaneously or in succession. As such, one of ordinary skill in the art would have been motivated to use the guidance in the teachings of Sievernich et al., in the teachings of Dahmen et al. to determine the timing of the application of metribuzin and the additional herbicides to control undesired vegetation.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Allowable Subject Matter
Claim 10-14 are allowed.
The following is a statement of reasons for the indication of allowable subject matter: The secondary considerations provided in the original specification demonstrate that compositions comprising a homogenous herbicidal solution comprising metribuzin, within the claimed weight percentage range; the claimed salts, ammonium sulfate, ammonium sulfate, and potassium citrate, within the claimed weight percent range, and polyvinyl alcohol, within the claimed weight percent range provide unexpected stability of metribuzin compared to compositions that do not contain polyvinyl alcohol and ammonium sulfate or potassium citrate. One of ordinary skill in the art would not expect the stability demonstrated in the secondary considerations.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Andriae M Holt whose telephone number is (571)272-9328. The examiner can normally be reached Monday-Friday, 8:00 am-4:30 pm EST.
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/ANDRIAE M HOLT/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614