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 .
Applicant’s response filed on April 21, 2026, has been received and fully considered.
The previous claim rejection made under 35 USC 103 over PENG (US 20190124925 A1) in view of YOSHII et al. (US 8778839 B2), which was indicated in the Office action dated January 18, 2026, has been maintained for reasons of record.
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 1-12 remain rejected under 35 U.S.C. 103 as being unpatentable over PENG (US 20190124925 A1, filed on March 15, 2017, previously cited) in view of YOSHII et al. (US 8778839 B2, published on July 15, 2014, U.S. equivalent of JP 2007284422 A, previously cited).
Peng discloses a dispersible oil suspension comprising at least (a) 2 % nicosulfuron, (b) 3 % isoxadifen-ethyl and (c) 5 % of a dispersant (phenemylphenol polyoxyethelene ether phosphate ester triethanolamine salt), 5% of the emulsifying agent, polyoxyethylene aliphatate and 8 % castor oil polyoxyethylene ether. In the formulation, another herbicidal active agent (compound A) is present in the amount of 6 %. Peng teaches, “[a]t present, the herbicides used in cornfields mainly include a few of products such as nicosulfuron and mesotrisone etc. These two herbicides have been applied on corn for many years, and the resistance of weeds to nicosulfuron has become prominent.” See [0008]. To address this issue, the reference teaches that using an herbicide safener such as isoxadifen-ethyl solves effectively resolves the problem as it is highly safe and has broad weed controlling spectrum.
Although Peng teaches that the agents are applied to corn and weeds in spray form, the reference fails to specifically disclose concentration of the emulsifier in the spray composition. See [0162-0163]; 2.3.2) Equipment and methods for applying agents.
Yoshii teaches an herbicidal composition comprising (1) sulfonylurea (SU) base compound or its salt, such as nicosulfuron, and (2) a polyoxyalkylene alkyl ether phosphate or its salt. See abstract; Example 1, Test Example 1. The reference teaches that the herbicidal effect of the herbicidal sulfonylurea compound is improved by a polyoxyalkylene alkyl ether phosphate, as the amount of the herbicide can be reduced, which is beneficial to the cost and the surrounding environment. See col. 2, lines 6 – 18. The composition is applied to an undesirable plant or a place where it is grown with or without dilution. See col. 7, lines 60 – 67. Yoshii teaches that when a SU-based compound or its salt and the POA alkyl ether phosphate ester or salt thereof are diluted with 30-5000 L/ha, or 50-2000 L/ha of water or the like, 0.01-2 % by weight of POA alkyl ether phosphate ester or salt thereof is added to the diluted liquid. See translation, col. 7, lines 49 – 59. The reference teaches that such amount is “an amount effective to increase the herbicidal activity”. See col. 8, lines 41 – 44.
In the Peng example, 2 % of nicosulfuron is used per 18 % of the stabilizing agents, at 1:9 ratio. Yoshii teaches that, the mix ratio of the SU compound or its salt to the POA alkyl ether phosphate or its salt would depend multiple factors, but most preferably range from 1:1 to 1:30 by weight ratio. See col. 7, lines 28 – 36. Test Example 1 teaches that the wettable powder comprising nicosulfuron as an active ingredient (25 g a.i./ha) was diluted with water in an amount of 300 L/ha, and the surfactant POA alkyl ether phosphate was added at a concentration of 0.05 wt %. Since 0.05 wt % of the 300 L/ha spray solution is 150 g/ha, the weight ratio between nicosulfuron: POA alkyl ether phosphate would be about 1:6.
It would have been obvious to one of ordinary skill in the art before the time of the effective filing date to modify the teachings of Peng and use the POA alkyl ether phosphate or its salt in an amount effective to increase the herbicidal activity of nicosulfuron as suggested and motivated by Yoshii. The skilled artisan would have been motivated to do so, as 1) Peng and Yoshii are both directed to methods of improving weed control; 2) Peng teaches that nicosulfuron is old and well known in herbicidal treatment for corn and discloses an herbicidal composition for such use comprising at least (a) nicosulfuron, (b) isoxadifen-ethyl and (c) stabilizing agents including a dispersant and emulsifying agents for dilution to make a spray; and 3) Yoshii teaches that the surfactant POA alkyl ether phosphate or its salts is combined with nicosulfuron in “an amount effective to increase the herbicidal activity”. Since both references are directed to controlling undesired plants by applying the water-diluted mixture containing nicosulfuron to the weeds or the place they grow, the skilled artisan would have had a reasonable expectation of successfully improving the efficacy of nicosulfuron by combining the teachings of the references and adding the POA alkyl ether phosphate in the suggested amount. See the present claims 1, 5 and 6.
Regarding claims 2, 3, 7 and 8, although Peng does not specifically disclose the presently claimed application amount to corn plants or where they grow, Yoshii suggests that nicosulfuron/POA alkyl ether phosphate is diluted with 30-5000 L/ha, or 50-2000 L/ha of water. In view of such teaching and suggestion, determining an optimal application amount of composition comprising nicosulfuron/safener isoxadifen-ethyl and stabilizing agents comprising POA alkyl ether phosphate would have been well within the ordinary skill in agricultural art.
Regarding claims 4 and 9, the Peng example contains additional herbicidal agent Compound A.
Regarding claims 10-12, the Peng example contains 2 % nicosulfuron and 3 % isoxadifen-ethyl and 5 % of a dispersant (phenemylphenol polyoxyethelene ether phosphate ester triethanolamine salt), 5% of the emulsifying agent, polyoxyethylene aliphatate and 8 % castor oil polyoxyethylene ether. In the formulation another herbicidal active agent is present in the amount of 6 %. Here, 2 % of nicosulfuron is used per 18 % of the stabilizing agents, at 1:9 ratio. Yoshii teaches that, the mix ratio of the SU compound or its salt to the POA alkyl ether phosphate or its salt would depend multiple factors, but most preferably range from 1:1 to 1:30 by weight ratio. See col. 7, lines 28 – 36. Test Example 1 teaches that the wettable powder comprising nicosulfuron as an active ingredient (25 g a.i./ha) was diluted with water in an amount of 300 L/ha, and the surfactant POA alkyl ether phosphate was added at a concentration of 0.05 wt %. Since 0.05 wt % of the 300 L/ha spray solution is 150 g/ha, the weight ratio between nicosulfuron: POA alkyl ether phosphate would be about 1:6, which is well within the presently claimed range.
Oath/Declaration
The declaration filed under 37 CFR 1.132 on April 21, 2026, has been fully considered but does not place the application in allowable condition.
The declaration shows data that the claimed concentration range of 0.001 – 0.25 w/v% of the component (c) gives optimum results on the height ratios of corn and herbicidal efficacies.
Applicant asserts that the declaration shows “the criticality of the range.” Although it is well settled that applicants can rebut a prima facie case of obviousness by showing the criticality of the range, such criticality is established when there is a difference between the prior art disclosure and applicant’s range. "The law is replete with cases in which the difference between the claimed invention and the prior art is some range or other variable within the claims. . . . In such a situation, the applicant must show that the particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range." See In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); MPEP 2144.05, III. A. In this case, applicant is asserting the present range has criticality over the disclosed range of 0.01-2 % by weight of POA alkyl ether phosphate ester, however, the present rejection cited Example 1 which explicitly shows 0.05 wt % of the phosphate surfactant was used for the 300 L/ha nicosulfuran spray solution. As such amount for component (c ) is well within the claimed range, it cannot be said that prior art amount is different from the present limitation. Thus, the examiner views that the criticality of the presently claimed range cannot be established.
Response to Arguments
Applicant's arguments filed on April 21, 2026, have been fully considered but they are unpersuasive for above reasons.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GINA JUSTICE whose telephone number is (571)272-8605. The examiner can normally be reached M-F 9:00 AM - 5 PM.
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/GINA C JUSTICE/Primary Examiner, Art Unit 1617
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