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 .
This Office Action is in response to Applicant’s amendment filed April 24, 2025. Claims 1-2, 6-7 and 9 are pending in the application. Claims 1, 2, 6, and 7 have been amended. Claims 1-2, 6-7 and 9 will presently be examined to the extent they read on the elected subject matter of record.
Status of the Claims
The objection to the disclosure because of the following informalities: “dimethylamino propalamide of saturated or unsaturated fatty acids” not being an art recognized term is withdrawn due to Applicant’s amendment to the specification.
The objections to claims 1 and 2 because of the following informalities: improper capitalizations is withdrawn due to Applicant’s amendment to the claims.
The rejections of claims 1, 2, 6, 7, and 9 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or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention is withdrawn due to Applicant’s amendment to the claims.
The rejection of claims 1, 6, 7, and 9 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) is maintained.
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, 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 propylamide 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 in acid form, wherein the microemulsion comprises micelles of about 50 nanometers.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Blumel teaches a composition of active ingredients formulated as microemulsions in their acid form (page 1, paragraph 19, translation).
Regarding claims 1 and 2, Blumel 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). Blumel 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 propylamide 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, Blumel 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).
Blumel 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, Blumel 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)
Blumel does not specifically disclose the use of dimethylamino propylamide of saturated and unsaturated fatty acid, the solvent is ethanol, or the microemulsion comprises micelles of about 50 nanometers. 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 Blumel, 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 Blumel. Blumel 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 propylamide 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, Blumel:
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. As such, it would have been obvious to one of ordinary skill in the art that the current dimethylamino propylamide of saturated and unsaturated fatty acids compound claimed is the same as the compound taught by Blumel. 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 Blumel, 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 the microemulsion comprises micelles of about 50 nanometers, Blumel 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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. Blumel also teaches the same method of preparing the composition, with the only difference being the solvent. However, as established, 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. Each method teaches 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. The rest of the components were mixed until homogeneity was achieved. Based on this teaching, following the prior art teaching that if the same components of the prior art are prepared in the same manner as the inventive entity, the skilled artisan would expect to obtain a result that necessarily flows with the intended purpose and properties, i.e., microemulsion comprises micelles of about 50 nanometers, without evidence to the contrary. In addition, Blumel teaches the formulations have the quality of protecting the products from physical and chemical losses and prevent spray droplets from being lost by volatilization, drift, bounce, rolled, fragmentation or adhesion, in addition to its inherent greater penetration because it is in the form of microemulsion.
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.
Response to Arguments
Applicant's arguments filed April 24, 2026 have been fully considered but they are not persuasive. Applicant argues the use of dimethylamino propylamide of fatty acids as presently claimed is not taught/suggested by Blumel. Applicant argues that DPAG is not merely a surfactant-like amide but rather a specifically engineered component that functions as a compatibilizing agent and solvent, allowing reduced surfactant levels while preserving microemulsion stability. Applicant argues Blumel relies on conventional multi-component surfactant systems and does not teach/suggest or even contemplate shifting functionality away from surfactants toward a solvent-driven compatibilization mechanism. Applicant argues there would have been no proper motivation at the time of the presently claimed invention. Applicant argues the references of record consistently teaches/suggest increasing surfactant complexity to achieve stability, whereas the presently claimed invention departs from this paradigm by significantly reducing surfactant content and relying on a compatibilizing solvent system. Thus, the proposed combination alleged by the Patent Office can only be derived using Applicant’s present specification as a blueprint, which constitutes improper hindsight. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
In further response to Applicant’s argument, Applicant claims are drawn to 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 propylamide 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 in acid form, wherein the microemulsion comprises micelles of about 50 nanometers. Applicant uses the transition phrase “comprises”, which indicates that other components can be added to the composition, including other surfactants. Applicant’s admission in the original specification that the dimethylamino propylamide 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, Blumel:
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. As such, it would have been obvious to one of ordinary skill in the art that the current dimethylamino propylamide of saturated and unsaturated fatty acids compound claimed is the same as the compound taught by Blumel and would have the same properties, i.e., compatibilizing agent and solvent, because compounds cannot be separated from its properties. In addition, Blume leaches that the adjuvant acts in the formula at the same time as a solvent.
Applicant argues that Blumel is entirely silent with respect to ultra-low volume applications and provides no teaching regarding stability or compatibility under reduced water conditions. In response to Applicant’s argument, Blumel teaches that the formulations are microemulsions, an improved behavior of the acid form and microemulsion in the spray broth is verified. See page 2, paragraphs 22 and 23. Blumel further teaches there is an enhancement, synergism, and physical-chemical compatibility is verified in tank mixtures with other formulations due to the design adjuvant, little or no incidence of quality of water used. See page 2, paragraphs 26 and 27. Blumel teaches formulations allow for the application of the product with a smaller volume of water, with respect to the one needed when other formulations are used. This teachings fits the definition of ultra-low volume, as indicated by Application on page 6 of the Remarks, which is the use of a very little amount of water in the formulations.
Applicant argues Blumel refers to a mixture of glyphosate and 2,4-D or glyphosate and dicamba. An ME comprising only 2,4-D is not disclosed in or taught/suggested by Blumel. In response to Applicant’s argument, the claims recite the transition phrase “comprises”, which indicates that other active ingredients can be used in the formulation. This is further evidenced in instant claim 7, which recites the mixture also includes glyphosate as an active component.
Applicant argues Spiridonov does not teach or suggest replacing surfactants with a compatibilizing solvent and does not suggest ULV-compatible microemulsion. Applicant argues that Spiridonov teaches away from the presently claimed invention. Applicant argues that the coconut oil dimethylaminopropylamide of Spiridonov is employed like any other general surfactant and not as solvent/compatibilizing agent like in the present invention. In response to Applicant’s argument, Spiridonov et al. was relied on as a secondary reference to teach surfactants use in agricultural compositions include coconut oil dimethylaminopropylamide. It would have been obvious to one of ordinary skill in the art that the current dimethylamino propylamide of saturated and unsaturated fatty acids compound claimed is the same as the compound taught by Blumel, as indicated hereinabove. 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 even if it is a different type of formulation, 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).
Applicant argues that Fowler would not have rendered the presently claimed use of ethanol obvious as a skilled person at the time of the presently claimed invention. In response to Applicant’s argument, the examiner maintains that one of ordinary skill in the art would have found it obvious to substitute the solvents taught by Blumel, 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, without evidence to the contrary.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant argues the specification provides evidence of superior and unexpected results achieved by the present claimed invention, including compatibility in the applications, a significant reduction in surfactant content relative to prior art systems, improved stability, and enhanced tank-mix compatibility. In response to Applicant’s assertion of unexpected results, evidence of nonobviousness must be commensurate in scope with that of the claimed subject matter. 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 propylamide 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 in acid form, wherein the microemulsion comprises micelles of about 50 nanometers. The data in Example 5 comprises the following compositions:
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. The objective of Example 9 is to evaluate the stability in the application solution having different types of 2,4-D formulations in conventional field mixtures. The data does indicate that compositions comprising the inventive compositions disclosed in Example 5 form crystalline solutions. The comparative examples are comprised of other salt formulations of 2,4-D, such as 2,4-D 2-ethylhexyl ester, in formulation 23. However, there is no data comparing the inventive compositions to the prior art compositions of Blumel. Blumel 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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. Since there is no comparison to the closest prior art, which has very similar compositions, it cannot be determined if the purported results are truly unexpected.
Allowable Subject Matter
Claim 2 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. Applicant’s argument that one of ordinary skill in the art would not have used the prior art teaching to determine that the composition comprises 30 w/v of 2,4-D is convincing. The prior art teaches that 2,4-D is present in an amount of 2-10% w/V, which is far less than the 30 w/v, currently claimed.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush can be reached at 571-272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDRIAE M HOLT/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
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