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 .
The previous claim rejection made under 35 U.S.C. 103 Arai et al. (US 20170006870 A1) in view of Chamoulaud et al. (CH 1432577 A) and Tamura et al. (US 2014014893 A1), as indicated in the Office action dated September 19, 2025, has been MAINTAINED for reasons of record and reproduced below.
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 9, 12 and 14-16 remain rejected under 35 U.S.C. 103 as being unpatentable over Arai et al. (US 20170006870 A1, published on January 12, 2017, cited in IDS) (“Arai” hereunder) in view of Chamoulaud et al. (CH 1432577 A, published on August 15, 1990) (“Chamoulaud” hereunder) and Tamura et al. (US 20140148493 A1, published on May 26, 2014) (“Tamura” hereunder).
The amended claim 9 is directed to a method of controlling a weed, comprising: treating a soil with an agrochemical composition comprising pyroxasulfone and a masking substance that masks the pyroxasulfone, wherein the pyroxasulfone is microencapsulated in or coated with the masking substance, wherein treating the soil is performed by spraying the agrochemical composition on farmland before seeding or farmland where a seeded pre-sprouting cultivated crop grows, wherein the soil is at least one well-drained soil selected from the group consisting of a sandy soil, a sandy loam, a loamy sand, a sandy clay loam, a sandy clay soil and a light clay soil, and wherein the cultivated crop is a small grain cereal plant or a bean plant.
Arai discloses a method of testing herbicidal effects on weeds by treating the soil, the method comprising treating upland soil with Echinochloa crusgalli with the agrochemical composition comprising microencapsulated pyroxasulfone made according to Examples 7, 9, and 10. See Test example 4. The soil treatment with the compositions from Examples 9 and 11 resulted in a complete weed control.
Regarding claim 10, Arai fails to specifically teach applying the microencapsulated pyroxasulfone composition on farmland before seeding or farmland where a seeded pre-sprouting cultivated crop grows. However, such application site would have been obvious to one of ordinary skill in the art before the effective filing date of the present application, as the same reference suggests that treating soils with pyroxasulfone is a common practice, and the test example shows that the microencapsulated herbicide effectively inhibits weed growth.
Although Arai fails to specifically provide the characteristics of the farmland soil upland soil, it is well known in the art that the ideal soil for cultivation is located on sandy, well-drained surface. See Chamoulaud, translation, p. 7, bridging paragraph. Thus, it would have been obvious to one of ordinary skill in the art to practice the disclosed weed control method on farmland where the soil is in optimal condition for cultivation of crops.
In agricultural art, methods of soil application of herbicides include application of the water-diluted or undiluted liquid or solid formulation onto soil and subsequent incorporation of the formulation into the whole soil before or after seeding. See, for example, Tamura, [0041-0042]. Tamura further teaches and suggests that insecticides can be “simultaneously” used with other pesticides including herbicides “for control of disease/insect pests, weeds, etc”; the reference suggests that such application method provides enhanced effects with reduced phytotoxicity to crops. See [0049]. Thus, one of ordinary skill in the art would have found it obvious to use the microencapsulated pyroxasulfone composition of the Arai reference on farm field before or after seeding as motivated by Tamura with a reasonable expectation of successfully inhibiting weed growth by combining the teachings of the references.
Regarding the types of the cultivated crop, Arai teaches that the cultivated crops which can be protected by foliage spraying of the microencapsulated pyroxasulfone composition include Triticum aestivum, Hordeum vulgare, Secale cereale, Glycine max, etc. Since the reference suggests that conventionally unmasked pyroxasulfone had been used to protect these crops, one of ordinary skill in the art would have found it obvious to use the Arai invention to treat the soils for controlling pests in cultivating the same types of crop disclosed in the reference. See also present claims 9, 12, 14 and 15.
Regarding claim 16, Arai specifically teaches that the providing pyroxasulfone with a masking material in a microencapsulated or coated formulation prevents phototoxicity to the cultivated crops due to adhesion. See abstract.
Response to Arguments
Applicant’s arguments filed on May 22, 2026 have been considered but are unpersuasive.
Applicant appears to argue that the soil treatment of Tamura is not “for foliage treatment” as indicated by the title and a part of the reference. However, it is well settled in patent law, "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." See In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968)). A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. See Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). In this case, Arai does disclose treating soil with herbicides and obviously would have be taught, suggested and motivated one of ordinary skill in the art to use the disclosure in Arai to _____,
Applicant’s arguments that Tamura fails to teach or suggest that the soil application of insecticides and an herbicide for “foliage treatment”. In fact, Tamura teaches in paragraph [0038],
Examples of the treatment method include spray treatment of foliage etc., treatment of nursery boxes for paddy rice, seed treatment such as dust coating, dipping and disinfection of seeds, planting hole treatment, plant foot treatment, planting row treatment, drench treatment and soil incorporation treatment.
Here, not only does Tamura disclose foliage treatment, but the reference also suggests that agricultural formulations can be used either as a spray treatment of foliage and/or soil treatment.
Applicant also argues that the utility of the Tamura composition as a weed control only indicates a purpose rather than as an effect or advantage. Such argument is not well taken; as indicated above in Tamura, and also as implied in Arai, soil treatment of a weed control agent for the plant to absorb the herbicide is not a novel, nonobvious or surprising use.
Applicant’s argument that Chamoulaud teaches away from using a farmland is also unpersuasive. There is nothing in the reference to suggest protecting the crops on a farmland is a novel, nonobvious or surprising.
Conclusion
No claims are 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.
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/GINA C JUSTICE/Primary Examiner, Art Unit 1617
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