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 .
Claims 1-2, 6-7 and 9 are pending in the application. Claims 1, 6, 7, and 9 have been amended.
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-5 and 2,4-D as the active ingredient species in the reply filed on July 25, 2025 is acknowledged. The traversal is on the ground(s) that Groups II and III are seen as practical “use cases” of the elected composition of Group I and that Group I is fully incorporated into Groups II and III. This argument is found to be persuasive based on Applicant’s claim amendments. As such, the restriction requirement between Groups II and III, is withdrawn. Claims 6, 7, and 9, as amended, will be rejoined.
Claims 1-2, 6-7 and 9 are pending in the application. Claims 1-2, 6-7 and 9 will presently be examined to the extent they read on the elected subject matter of record.
Priority
This application is a National Stage Entry of PCT/IB2020/059866 filed October 20, 2020, which claims benefit to Argentina Foreign Application No. P20200101010 filed April 8, 2020.
Information Disclosure Statement
Receipt of Information Disclosure Statement filed June 29, 2022 is acknowledged.
Specification
The disclosure is objected to because of the following informalities: Applicant recites the following term throughout the specification “dimethylamino propalamide of saturated or unsaturated fatty acids”. This term is not an art recognized term, as will be explained in the 112 (b) rejection below. It is believed that the term should be “dimethylamino propylamide”. Applicant is requested to clarify the term. Appropriate correction is required.
Claim Objections
Claims 1 and 2 are objected to because of the following informalities: Applicant uses upper case letters throughout the claims 1 and 2, such as “Ultra Low Volume”, “Dimethylamino propalamide”, “Coconut Fatty Amine Ethoxylate”, “Ethanol”, “Water”, “Active”. These terms should not be capitalized.
Claim 2, line 7, recites % w/V. The “V” should not be capitalized. The term should recite “% w/v”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 2, 6, 7, and 9 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1 and 2 recite the term “Dimethylamino propalamide of saturated and unsaturated fatty acids”. The term is indefinite because it is not an art recognized term. The term is not a recognized IUPAC name. The specification indicates it corresponds to the following formula:
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. Based on this formula it is “dimethylamino propylamide”. For the purpose of compact prosecution, the limitation of “dimethylamino propalamide” is interpreted as “dimethylamino propylamide”. If Applicant believes this interpretation is in error, Applicant must disclose the proper nomenclature and support for that nomenclature. If the interpretation is correct, the specification would have to be amended to reflect the correct nomenclature, as indicated in the “Objection to the Specification” herein above.
Applicant recite the phrase “even in Ultra Low Volume applications” in line 2 of claim 1. This phrase is indefinite because these are relative terms. The phrase is not defined by the claims and the specification does not provide a standard for ascertaining the requisite degree, nor are there any basis for comparison given. One of ordinary skill in the art would not be reasonably apprised of the scope of the invention for “even in ultra low volume applications”, particularly the terms “ultra-low”.
Claim 2 recites the limitation "in its acid form" in line 7. There is insufficient antecedent basis for this limitation in the claim. Claim 2 is dependent from claim 1. Claim 1 recites the active ingredient is 2,4-D. There is no recitation in claim 1 that indicates 2,4-D can be in any other form other than the free form. As such, there is lack of antecedent basis for “acid form”.
Claim 7 recites the limitation "any of the compositions defined in claim 1" in lines 1 and 2. There is insufficient antecedent basis for this limitation in the claim. Claim 1 has been amended wherein the only composition comprises the active ingredient 2,4-D. All other active ingredients have been cancelled. As such, there is only one composition and “any of the compositions defined in claim 1” lacks antecedent basis.
Claim 7 recites “includes 2,4-D and glyphosate as active components. As the claim is now amended, the composition defined in claim 1 already contains 2,4-D as the active ingredient. It is unclear the purpose of the limitation wherein the mixture includes 2,4-D and glyphosate since 2,4-D is already included in the composition of claim 1. The inclusion of the limitation of 2,4-D is repetitive. Applicant should clarify.
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 (i.e., changing from AIA to pre-AIA ) 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, 2, 6, 7, and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Blumel (WO 2019/215483) in view of Spiridonov et al. (RU 2402907, Translation) and Fowler et al. (US 9,456,604). Blumel cited by Applicant on the IDS dated 6/20/2022. Blumel (US 2021/0368784) used as the English Equivalent of WO 2019/215483 for translation purposes.
Applicant’s Invention
Applicant claims a composition in the form of microemulsion (ME) being highly compatible in spray solutions, even in Ultra Low Volume applications, wherein the compositions comprises: Dimethylamino propalamide of saturated and unsaturated fatty acids 35-45% w/v, Coconut Fatty Amine Ethoxylate 7-12% w/v, Ethanol 6-9% w/v, Water 20-30% w/v, Active ingredient 10-40% w/v, said active ingredient being 2,4-D.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Brumel teaches a composition of active ingredients formulated as microemulsions in their acid form (page 1, paragraph 19, translation).
Regarding claims 1 and 2, Brumel teaches the herbicidal formulation of the invention comprises at least one active ingredient selected among: between 5-15% w/V of Glyphosate and 2-10% w/V of 2,4-Dichlorophenoxyacetic Acid and at least four (4) of the following surfactants/solvents to generate a suitable adjuvant:
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(page 2, paragraphs 43-44, translation). Brumel teaches the percentages indicated are expressed in % w/V with respect to the total formulation (page 2, paragraph 46, translation).
The amount of soybean oil amino amide falls within the ranges of dimethyloamino propalamide of saturated and unsaturated fatty acids of 35-45%, as claimed in claim 1 and 37%, as claimed in claim 2. The amount of ethoxylated coconut fatty acid amine falls within the ranges of coconut fatty amine ethoxylate of 7-12%, as claimed in claim 1 and 11%, as claimed in claim 2. The amount of water falls within the ranges of water of 20-30%, as claimed in claim 1 and 22%, as claimed in claim 2.
Regarding claims 6 and 7, Brumel teaches the theoretical amount of cyclohexanone solvent was loaded to the stirring tank. Under stirring, the total theoretical amount of ethoxylated coconut amine with 15 moles of EO was loaded and was stirred until complete dissolution and until obtaining a crystalline solution. Under stirring, the total theoretical amount of soybean oil amino amide was loaded, and stirred until complete dissolution and until obtaining a crystalline solution. Under stirring, all the water indicated in the formula was added. Under stirring, the total theoretical amount of Glyphosate Technical Grade was loaded and 2,4-D Technical Grade, and was stirred until complete dissolution and until obtaining a crystalline solution. It was filtered and the product was checked for quality control, which once approved was released for packaging. (page 5, paragraphs 241-247, translation).
Brumel teaches to evaluate and demonstrate the efficacy of the co-formulated herbicide (Acid 2,4-D 8% w/V+Acid Glyphosate 11% w/V ME) in post-emergency control of grasses and broadleaf weeds present in fallow (page 12, paragraph 382, translation).
Regarding claim 9, Brumel teaches the use of glyphosate potassium salt (page 15, Table 1, translation).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Brumel does not specifically disclose the use of dimethylamino propalamide of saturated and unsaturated fatty acid, which is interpreted at dimethylamino propylamide of saturated and unsaturated fatty acid, the solvent is ethanol, or the percentage of 2,4-D, as claimed in claim 2. It is for this reason Spiridonov et al. and Fowler et al. are added as secondary references.
Spiridonov et al. teach herbicidal compositions for eradication of weeds in fallow field (page 1, Substance). Spiridonov et al. teach surfactants include coconut oil dimethylaminopropylamide (page 4, paragraph 1).
Fowler et al. teach a method of selectively controlling weeds at a locus comprising crop plants and weeds (Abstract). Fowler et al. teach the compound of formula I + 2,4-D and formula I (col. 2, line 45) + glyphosate (including the potassium salt) (col. 2, lines 63-64). Fowler et al. teach the skilled person will appreciate that many solvents can be used with regard to the non-aqueous herbicidal compositions. Suitable solvents include alcohol, such as ethanol; ketones such as cyclohexanone, and strongly polar solvents, such as N-methyl-2-pyrrolidone (col. 7, lines 34-45).
Finding a prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Brumel, Spiridonov et al., and Fowler et al. and use dimethylamino propylamide of saturated and unsaturated fatty acid as the amino amide in the herbicidal formulation taught by Brumel. Brumel teaches the herbicidal formulation of the invention comprises at least one active ingredient selected among: between 5-15% w/V of Glyphosate and 2-10% w/V of 2,4-Dichlorophenoxyacetic Acid and at least four (4) of the following surfactants/solvents to generate a suitable adjuvant including soybean oil amino amide. This is evidenced by Applicant’s admission in the original specification that the dimethylamino propalamide of saturated and unsaturated fatty acids has the following characteristics:
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. These are the exact same characteristics as the soybean oil amino amide taught by the primary reference, Brumel:
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. As such, it would have been obvious to one of ordinary skill in the art that the current dimethylamino propalamide of saturated and unsaturated fatty acids compound claimed is the same as the compound taught by Brumel. In addition, it would have been obvious to one of ordinary skill in the art to use a surfactant, a fatty oil of dimethylaminopropylamide, that is known to be used in herbicidal formulations, as taught by Spiridonov et al. in the formulations, 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 use of ethanol as the solvent, one of ordinary skill in the art would have found it obvious to substitute the solvents taught by Brumel, cyclohexanone or N-methylpyrrolidone, with another known solvent used in herbicidal formulations. Fowler et al. teach suitable solvents include alcohol, such as ethanol; ketones such as cyclohexanone, and strongly polar solvents, such as N-methyl-2-pyrrolidone. Therefore, it would have been prima facie obvious to substitute one known agricultural solvent, such as ethanol, for another such as cyclohexanone or N-methylpyrrolidone, since the prior art establishes ethanol, cyclohexanone and N-methyl-2-pyrrolidone are all functional equivalent agricultural solvents.
Regarding the limitation of claim 2, wherein the 2,4-D in its acid form is 30% w/v with respect to the total formulation, one of ordinary skill in the art would have been motivated to use experimentation and optimization to determine the amount of 2,4-D to be used in the composition. Brumel teaches 2-10% w/V of 2,4-Dichlorophenoxyacetic Acid is used in the application. One of ordinary skill in the art would have found it obvious to use experimentation to determine the optimal amount of 2,4-D to use in the composition to eradicate weeds. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references) 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.
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.
Conclusion
No claims are allowed.
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