DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Claims
Claims 1-5 and 8-12 are pending in the present application.
Withdrawn Rejections
The rejection of claims 1-3, 7-8 and 10-11 under 35 U.S.C. 102(a)(1) as being anticipated by Baur et al. (US 2017/0265477 A1) is withdrawn in view of the amendment to claim 1 to insert the limitations from claim 6 and state at least 10 wt.% of the amine component.
The rejection of claims 1-4, 7 and 9-11 under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Gao et al. (US 2019/0208786 A1) is withdrawn in view of the amendment to claim 1 to insert the limitations from claim 6 and state at least 10 wt.% of the amine component.
The rejection of claims 1-4 and 7-12 under 35 U.S.C. 103 as being unpatentable over Tu et al. (WO 2019/212888 A1) is withdrawn in view of the amendment to claim 1 to insert the limitations from claim 6 and state at least 10 wt.% of the amine component.
The rejection of claim 5 under 35 U.S.C. 103 as being unpatentable over Tu et al. (WO 2019/212888 A1) as applied to claims 1-4 and 7-12 above, further in view of Baur et al. (US 2017/0265477 A1) is withdrawn in view of the amendment to claim 1 to insert the limitations from claim 6 and state at least 10 wt.% of the amine component.
The rejection of claim 6 under 35 U.S.C. 103 as being unpatentable over Tu et al. (WO 2019/212888 A1) as applied to claims 1-4 and 7-12 above, further in view of Jimoh (US 6,713,433) is withdrawn in view of the amendment to claim 1 to state at least 10 wt.% of the amine component.
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 1-5 and 8-12 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.
Instant claim 1 states, “the amine component is a chloride, sulfate, sulfonate, or methylsulfonate salt of a primary, secondary, or tertiary ammonium cation”, and later states, “the amine component is an amine selected from ethanolamine, diglycolamine, 1-aminopropan-2-ol, 2-dimethylaminoethanol, or an ammonium salt thereof, or a salt of tris(2-hydroxyethyl)methylammonium”.
The first definition of the amine component requires it to be a chloride, sulfate, sulfonate, or methylsulfonate salt of a primary, secondary, or tertiary ammonium cation and it does not include quaternary ammonium compounds, such as tris(2-hydroxyethyl)methylammonium. However, the second definition states “or an ammonium salt thereof”, which includes amines that are not ammonium salts, and also includes the quaternary ammonium compound tris(2-hydroxyethyl)methylammonium. Therefore, the second definition includes amines that are not salts, as well as the quaternary ammonium compound that is not included in the first definition. Thus, the metes and bounds of the amine component of claim 1 are unclear.
Claims 2-5 and 8-12 depend from claim 1 and do not clarify the amine component. Therefore, these claims are indefinite for the same reasons.
For the purposes of searching for and applying prior art, the examiner is construing the amine component as being a chloride, sulfate, sulfonate, or methylsulfonate salt of the ammonium cation of ethanolamine, diglycolamine, 1-aminopropan-2-ol, 2-dimethylaminoethanol, or tris(2-hydroxyethyl)methylammonium.
Note: in claim 12, line 2, the term “the” should be removed from between -comprising- and -treating-.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-5 and 8-12 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (US 2016/0143288 A1) in view of Tu et al. (WO 2019/212888 A1) and Perry et al. (US 2007/0082819 A1).
Zhang et al. teach herbicidal compositions comprising a mixture of potassium or certain amine salts of glyphosate and dicamba, wherein the composition is adjusted to a pH of about 6.0 to about 8.0 (Abstract; [0004], [0010]-[0014]; Claim 1).
Regarding claim 1, Zhang et al. teach that the pH of the composition is adjusted by using a slight excess of KOH or the appropriate amines ([0020], [0030], [0031]). The amines include monoethanolamine (EA), diglycolamine (DGA), dimethylethanolamine (DMEA), etc. ([0015]; Tables 1-2, 4). Zhang et al. also teach that the compositions may further be used in conjunction with glufosinate ([0029]). Furthermore, one or more cosolvents and/or efficacy-enhancing surfactants can optionally be incorporated into the high-strength composition while still maintaining the high loading ([0008], [0021], [0024]-[0025]; Claim 8).
Zhang et al. do not explicitly disclose the concentration of the excess amine being at least 10 wt.% of the total weight of the composition, as in claim 1.
However, Zhang et al. teach glyphosate mixed with water and reacted with 1.25 molar equivalents of amine aqueous solutions, followed by additional amine to adjust the pH to a range of 6-8 ([0030]). Zhang et al. further teach dicamba mixed with water and reacted with 1.05 or higher molar equivalent amount of amine aqueous solutions ([0031]).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to determine through routine experimentation the workable concentration range of additional amine to adjust the pH of the composition to about 6 to about 8.
Zhang et al. do not explicitly disclose compositions comprising glufosinate ammonium, as in claim 1.
Also, Zhang et al. teach that the compositions may further comprise efficacy-enhancing surfactants, but do not explicitly disclose surfactants comprising the alkyl ether sulfates of formula (I), as in claim 1.
Tu et al. teach an aqueous herbicide composition comprising: (a) from about 1 to about 25 weight percent on an acid equivalent (wt% ae) basis of a water soluble salt of glufosinate; (b) from about 1 to about 25 wt% ae of a water soluble salt of a synthetic auxin herbicide; and (c) from about 1 to about 25 weight percent (wt%) of a surfactant, wherein the surfactant is an anionic surfactant such as sodium lauryl ether sulfate, and a surfactant of Formula (III), and wherein the composition comprises an organic amine compound or quaternary organic ammonium compound, including ethanolamine, diglycolamine, isopropanolamine, and dimethylethanolamine ([0006]-[0018]; Claims 1-14).
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Tu et al. teach examples of compositions comprising glufosinate, a synthetic auxin herbicide, such as dicamba or 2,4-D, an organic amine compound or quaternary organic ammonium compound, such as dimethylamine and choline hydroxide, and an anionic surfactant, such as sodium or isopropylammonium lauryl ether sulfate (Table 3). Tu et al. further teach that one exemplary glufosinate salt is glufosinate ammonium ([0041]). The compositions can be used in conjunction with glyphosate, glufosinate, dicamba, or imidazolinones ([0068]).
Tu et al. teach that surface-active agents are advantageously employed in liquid compositions, especially those designed to be diluted with a carrier before application. The surface-active agents can be anionic, cationic, or nonionic in character and can be employed as emulsifying agents, wetting agents, suspending agents, or for other purposes ([0080]).
It would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare compositions according to Zhang et al. comprising glufosinate ammonium in combination with the synthetic auxin herbicide dicamba and glyphosate, and wherein the surfactant includes a lauryl ether sulfate, as reasonably suggested by Tu et al.
A person of ordinary skill in the art would have been motivated to incorporate glufosinate ammonium into the compositions according to Zhang et al. because Zhang et al. teach that their compositions comprise dicamba and glyphosate and may be used in conjunction with glufosinate, and Tu et al. teach compositions comprising glufosinate and dicamba and may be used in conjunction with glyphosate. A person of ordinary skill in the art would have been motivated to combine the glufosinate, dicamba and glyphosate into one composition for application to crops, especially herbicide-tolerant crops.
It would have been prima facie obvious for a person of ordinary skill in the art to use the lauryl ether sulfates according to Tu et al. as surfactants in the compositions according to Zhang et al. in view of the teaching of Tu et al. that the lauryl ether sulfate surfactants are suitable for use in compositions comprising salts of glufosinate and dicamba, and the surfactants can be employed as emulsifying agents, wetting agents, suspending agents, or for other purposes.
Zhang et al. do not explicitly disclose compositions comprising the chloride, sulfate, sulfonate, or methylsulfonate salt of the amines, as in claim 1.
Perry et al. teach that agrochemical active ingredients are generally utilized in combination with an adjuvant, which is frequently a surfactant. Most commonly adjuvants are added to enhance the bioperformance of the active ingredient and many such bioperformance enhancing adjuvants are known to those skilled in the art. We have now found that certain amines and amine salts, or short-chain alkyl quaternary ammonium salts provide effective bioperformance enhancement of the active ingredient despite having little or no surfactant properties ([0002]).
Perry et al. teach that amine salts according to their invention preferably include ethanolamine salts, such as ethanolamine as the hydrochloride salt (Abstract; [0025], [0044], [0049]-[0051]; Table 2; Claims 5, 27). In general, the pH of the amine is adjusted with acid approximately to that of the paraquat or diquat composition and those nitrogen atoms of the amine which are sufficiently basic become protonated ([0045]).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to incorporate ethanolamine as the hydrochloride salt in the compositions according to Zhang et al. since the amine salts provide effective bioperformance enhancement of the active ingredient, as reasonably suggested by Perry et al.
Regarding claims 2-4, Tu et al. teach that the surfactants of Formula (III) include compounds wherein n is an integer from 1-3, and M is Na ([0063]). It is noted that the ethoxy group of Formula (III) according to Tu et al. comprises H in each of the positions corresponding to RA, RB, RC and RD of claim 3.
Regarding claim 5, Zhang et al. teach providing additional amine to adjust the pH to a range of 6-8 ([0030]).
Regarding claim 8, Zhang et al. teach high-strength liquid compositions containing greater than 300 gae/L of total active ingredient loading (Abstract; [0004], [0008], [0014], [0016]; Tables 1-4; Claim 1). Zhang et al. also teach that the surfactant can be included in the herbicidal composition in a desired concentration. If surfactants are used, preferably the desired concentration is sufficient to enhance the herbicidal activity of the resulting composition over that observed with a comparable herbicidal composition without the surfactants. More preferably, the herbicidal composition includes the surfactant in amounts between about 20 g/L and about 200 g/L; most preferably in amounts between about 50 g/L and about 100 g/L ([0025]).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare compositions according to Zhang et al. and Tu et al. comprising greater than 300 gae/L glufosinate ammonium, excess amine component to adjust the pH to between about 6 and about 8, and between about 50 g/L and about 100 g/L lauryl ether sulfate surfactant.
Regarding claim 9, Zhang et al. teach that the amine includes monoethanolamine (EA) ([0015]; Tables 1-2, 4; Claims 5-6).
Regarding claim 10, Zhang et al. teach compositions comprising a combination of salts of glufosinate and dicamba (Examples 3-4; Claims 1-10).
Regarding claim 11, Zhang et al. teach compositions comprising a salt of glufosinate and excess amine component, wherein the compositions may further comprise a surfactant. The excess amine component according to Zhang et al. would necessarily increase the herbicidal activity of a liquid herbicidal composition, as in claim 11.
The fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Regarding claim 12, Zhang et al. teach a method of controlling undesirable vegetation in crops comprising applying their composition to the undesirable vegetation and the crops (Claim 10). The agricultural compositions prepared according to the present invention are highly effective as an herbicide composition against a variety of weeds. The concentrated agricultural compositions are typically diluted in water and then applied by conventional means well known to those in the art ([0028]).
Also, Tu et al. teach that applying a herbicide or herbicidal composition may be understood to include delivering it directly to the targeted vegetation or to the locus thereof or to the area where control of undesirable vegetation is desired. Methods of application include, but are not limited to, pre-emergently contacting soil or water, post-emergently contacting the undesirable vegetation, or contacting the area adjacent to the undesirable vegetation. The term “vegetation” may be understood to include, for instance, dormant seeds, germinating seeds, emerging seedlings, plants propagating from vegetative propagules, immature vegetation, and established vegetation ([0031]-[0032]).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to treat plant propagation material, such as seeds, with the compositions according to Zhang et al., as reasonably suggested by Tu et al. A person of ordinary skill in the art would have the reasonable expectation that treatment of seeds with the herbicidal compositions according to Zhang et al. in view of Tu et al. would effectively control undesired plant growth, as reasonably taught by Tu et al.
Response to Arguments
Applicant's arguments filed 22 August 2025 have been fully considered but they are not persuasive. Applicant argues that WO '888 fails to teach or suggest any additional amine beyond those mentioned, which are functioning merely as neutralizing agents for the pesticide acids involved.
The examiner respectfully argues that Zhang et al. teach incorporating excess amine to adjust the pH of the composition. Perry et al. teach that hydrochloric acid neutralizes the amines to provide amine salts such as the hydrochloride salt of ethanolamine, and provides effective bioperformance enhancement of the active ingredient. Therefore, it would have been obvious to incorporate excess amine in the form of the hydrochloride salt (e.g., ethanolammonium chloride) in order to provide effective bioperformance enhancement of the herbicide active ingredients.
Claims 1-4 and 9-11 are rejected under 35 U.S.C. 103 as being unpatentable over Gao et al. (US 2019/0208786 A1) in view of Zhang et al. (US 2016/0143288 A1) and Perry et al. (US 2007/0082819 A1).
Gao et al. teach aqueous herbicidal concentrate compositions comprising a glufosinate component, an auxin herbicide component, a monocarboxylic acid and/or salt thereof, and a surfactant component (Abstract; [0007]).
Regarding claim 1, Gao et al. teach that the ammonium salt of glufosinate is the most common commercially available form. Thus, in various embodiments, the glufosinate component comprises the ammonium salt of glufosinate ([0016]). Gao et al. also teach that the surfactant component comprises alkyl ether sulfates, including ammonium C6-10 alcohol ether sulfate, sodium C6-10 alcohol ether sulfate, isopropylammonium C6-10 alcohol ether sulfate, ammonium C10-12 alcohol ether sulfate, and sodium lauryl ether sulfate ([0034]-[0037]). Gao et al. teach liquid compositions comprising ammonium glufosinate, dicamba monoethanolamine and sodium lauryl ether sulfate (Table 19.1, 19.3 and 19.4).
Gao et al. do not explicitly disclose a concentration of amine component being at least 10 wt.% of the total weight of the composition, as in claim 1.
Zhang et al. teach herbicidal compositions comprising a mixture of potassium or certain amine salts of glyphosate and dicamba, wherein the composition is adjusted to a pH of about 6.0 to about 8.0 (Abstract; [0004], [0010]-[0014]; Claim 1). Zhang et al. teach that the pH of the composition is adjusted by using a slight excess of KOH or the appropriate amines ([0020], [0030], [0031]). The amines include monoethanolamine (EA), diglycolamine (DGA), dimethylethanolamine (DMEA), etc. ([0015]; Tables 1-2, 4). Zhang et al. also teach that the compositions may further be used in conjunction with glufosinate ([0029]). Furthermore, one or more cosolvents and/or efficacy-enhancing surfactants can optionally be incorporated into the high-strength composition while still maintaining the high loading ([0008], [0021], [0024]-[0025]; Claim 8).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare compositions according to Gao et al. further comprising an excess of amines to adjust the pH to about 6.0 to about 8.0, as reasonably suggested by Zhang et al. A person of ordinary skill in the art would have been motivated to determine through routine experimentation the workable concentration range of additional amine to adjust the pH of the composition to about 6 to about 8.
Gao et al. do not explicitly disclose compositions comprising the chloride, sulfate, sulfonate, or methylsulfonate salt of the amines, as in claim 1.
Perry et al. teach that agrochemical active ingredients are generally utilized in combination with an adjuvant, which is frequently a surfactant. Most commonly adjuvants are added to enhance the bioperformance of the active ingredient and many such bioperformance enhancing adjuvants are known to those skilled in the art. We have now found that certain amines and amine salts, or short-chain alkyl quaternary ammonium salts provide effective bioperformance enhancement of the active ingredient despite having little or no surfactant properties ([0002]).
Perry et al. teach that amine salts according to their invention preferably include ethanolamine salts, such as ethanolamine as the hydrochloride salt (Abstract; [0025], [0044], [0049]-[0051]; Table 2; Claims 5, 27). In general, the pH of the amine is adjusted with acid approximately to that of the paraquat or diquat composition and those nitrogen atoms of the amine which are sufficiently basic become protonated ([0045]).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to incorporate ethanolamine as the hydrochloride salt in the compositions according to Gao et al. since the amine salts provide effective bioperformance enhancement of the active ingredient, as reasonably suggested by Perry et al.
Regarding claims 2-4, Gao et al. teach sodium lauryl ether sulfate (i.e., index x is 1; RA-RD are each H; and M+ is Na+).
Regarding claim 5, Gao et al. teach the pH of compositions comprising EA dicamba-glufosinate being 6.03 to 8.06 (Table 17).
Regarding claim 8, Gao et al. teach the concentration (wt.%) of the auxin herbicide is at least about 5 wt.% to about 40 wt.% ([0025]). In some embodiments, the concentration of the glufosinate component is greater than the concentration of the auxin herbicide. In other embodiments, the concentration of the auxin herbicide is greater than the concentration of the glufosinate component. The acid equivalence weight ratio of the glufosinate component to the auxin herbicide component is about 10:1 to about 1:10 ([0026]). Gao et al. teach that the concentration of the surfactant component is at least about 1 wt.%, at least about 2 wt.%, at least about 3 wt.%, at least about 4 wt.%, at least about 5 wt.%, at least about 6 wt.%, at least about 7 wt.%, at least about 8 wt.%, at least about 9 wt.%, at least about 10 wt.%, at least about 12 wt.%, at least about 15 wt.%, or at least about 20 wt.%. In some embodiments, the concentration of the surfactant component can be from about 1 wt.% to about 25 wt.%, from about 2 wt.% to about 25 wt.%, from about 3 wt.% to about 25 wt.%, from about 4 wt.% to about 25 wt.%, from about 5 wt.% to about 25 wt.%, from about 5 wt.% to about 20 wt.%, from about 10 wt.% to about 20 wt.%, from about 15 wt.% to about 20 wt.%, or from about 10 wt.% to about 15 wt.% ([0034]).
As discussed above, Zhang et al. teach herbicidal compositions comprising excess amine to adjust the pH to about 6.0 to about 8.0.
It would have been prima facie obvious for a person of ordinary skill in the art to prepare compositions comprising at least about 5 wt.% to about 40 wt.% glufosinate ammonium, at least about 5 wt.% alkyl ether sulfate surfactant, and sufficient amine salt to adjust the pH to about 6.0 to about 8.0.
Regarding claim 9, Gao et al. teach that the salt of dicamba includes monoethanolamine salt of dicamba ([0020]-[0022]). Zhang et al. teach that the amines include monoethanolamine (EA) ([0015]; Tables 1-2, 4).
Regarding claim 10, Gao et al. teach compositions comprising dicamba.
Regarding claim 11, Zhang et al. teach compositions comprising a molar excess of amine component compared to the herbicidal active. The excess amine component according to Zhang et al. would necessarily increase the herbicidal activity of a liquid herbicidal composition, as in claim 11.
Response to Arguments
Applicant's arguments filed 22 August 2025 have been fully considered but they are not persuasive. Applicant argues that the '786 publication discloses an herbicidal composition comprising glufosinate, dicamba, and monoethanolamine (MEA) as a neutralizing amine component (See Table 2). MEA is present in substantially lower quantities than recited in the present claims.
The examiner respectfully argues that it would have been obvious for a person of ordinary skill in the art to prepare compositions according to Gao et al. further comprising an excess of amines to adjust the pH to about 6.0 to about 8.0, as reasonably suggested by Zhang et al. A person of ordinary skill in the art would have been motivated to determine through routine experimentation the workable concentration range of additional amine to adjust the pH of the composition to about 6 to about 8. Also, Perry et al. teach that the ratio by weight of the amine salt to the agrochemical active ingredient is from 1:20 to 10:1 (Claim 6). It would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date to include the hydrochloride salt of ethanolamine in the compositions according to Gao et al., wherein the amine salt is present in a ratio by weight of the amine salt to the agrochemical active ingredient is from 1:20 to 10:1. A person of ordinary skill in the art would have been motivated to determine through routine experimentation the workable concentration range for the amine salt in the formulations according to Gao et al.
Conclusion
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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nathan W Schlientz whose telephone number is (571)272-9924. The examiner can normally be reached 10:00 AM to 6:00 PM, Monday through Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue Liu can be reached on (571) 272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/N.W.S/Examiner, Art Unit 1616
/Mina Haghighatian/Primary Examiner, Art Unit 1616