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 .
Election/Restrictions
Applicant's election with traverse of Group I (claims 1-7 and 12) in the reply filed on 05 August 2025 is acknowledged. The traversal is on the ground(s) that the common special technical feature in all claims is a compound of formula (I), and Groups I and III do not lack unity as they are drawn to a product and process of using the product, and the International Searching Authority did not find lack of unity, and there is no burden in examining all groups. This is not found persuasive because the teachings of Tu et al. in view of Brock et al. (both of record) rendered the compound of formula (I) obvious as set forth in the restriction requirement, and was also obvious per the prior art as discussed below in this Office action; the product and process of using the product of Groups I and III lack a common special technical feature as set forth in the restriction requirement and therefore lack unity; the findings of the ISA are not binding on the Office; and burden is not relevant to the Unity of Invention standard.
The requirement is still deemed proper and is therefore made FINAL.
Claims 8-11 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to nonelected inventions, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 05 August 2025.
Applicant’s election of compound of formula (I) species lauryl ether sulfate monoethanolammonium (MEA-LES) in the reply filed on 05 August 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the species election requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Applicant’s election of agrochemical active ingredient species ammonium salt of glufosinate/(L)-glufosinate in the reply filed on 05 August 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claim 5 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 05 August 2025.
Claims 1-4, 6-7, and 12 are under current consideration.
Claim Rejections - 35 USC § 103
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.
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.
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.
Claim(s) 1-4, 6-7, and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Long (US 2013/0090239 A1; published 11 April 2013) in view of Brock et al. (EP- 0656416-A1; published 07 June 1995; of record; citations herein to English machine translation made 09 March 2025; of record).
Regarding claim 1, Long discloses a liquid herbicidal composition comprising a water-soluble herbicidal ingredient and a C8-C16 alkyl ether sulfate (claim 1), which reads on the claimed agrochemical composition, wherein the water-soluble herbicidal ingredient comprises glufosinate-ammonium (claim 2), which reads on the claimed and elected species of agrochemical active ingredient ammonium glufosinate, wherein the C8-C16 alkyl ether sulfate can be a salt of lauryl ether sulfate (paragraph [0022]).
Further regarding claim 1, although Long does not disclose a salt of lauryl ether sulfate as being the claimed and elected species of lauryl ether sulfate monoethanolammonium, Brock et al. discloses mono-, di-, or tri-alkanolammonium salts of alkyl ether sulphate surfactants that give homogenous and free-flowing liquid formulations (abstract) wherein Sample 1 is C₁₂-C₁₄ fatty alcohol ether sulfate 2 mol EO / mol monoethanolammonium salt (page 7 first paragraph) which encompasses instant formula (I) wherein R is linear C12-alkyl (i.e., lauryl); RA, RB, RC, and RD are H; x is 2; and M+ is a monoethanolammonium cation.
Further regarding claim 1, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Long and Brock et al. by using the monoethanolammonium cation lauryl ether sulfate of Brock et al. as the salt of lauryl ether sulfate in the composition of Long as discussed above, with a reasonable expectation of success. A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so to use a suitable known cation of lauryl ether sulfate therein that results in homogenous and free-flowing liquid formulations as suggested by Brock et al.
Regarding claim 2, as discussed above regarding claim 1, Brock et al. discloses x=2, which reads on the claimed x=1-3.
Regarding claim 3, as discussed above regarding claim 1, Brock et al. discloses the claimed RA, RB, RC, and RD are H.
Regarding claim 4, as discussed above regarding claim 1, Long discloses glufosinate-ammonium, which reads on the claimed glufosinate or salt thereof.
Regarding claim 6, Long discloses that the C8-C16 alkyl ether sulfate is present in an amount of 3 to 35 percent by weight, based on the total weight of the composition (claim 6), which overlaps the claimed concentration range of the compound of formula (I) of more than 25 wt%, and a prima facie case of obviousness exists where prior art and claimed range overlap per MPEP 2144.05(I).
Regarding claim 7, Long discloses 20 to 35 percent by weight, based on the total weight of the composition of the water-soluble herbicidal ingredient (claim 1), which overlaps the claimed concentration range of agrochemical active ingredient of 5-50 wt%, and a prima facie case of obviousness exists where prior art and claimed range overlap per MPEP 2144.05(I).
Regarding claim 12, as discussed above regarding claim 1, Long discloses glufosinate-ammonium, which reads on the claimed ammonium salt of glufosinate.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-4, 7, and 12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 7 and 10 of U.S. Patent No. 10,716,304 in view of Brock et al.
Regarding claim 1, the ‘304 claims disclose a liquid herbicidal composition comprising a salt of glufosinate and a lauryl ether sulfate or salt thereof (claim 1), which reads on the claimed agrochemical composition, wherein the salt of glufosinate is glufosinate-ammonium (claims 7, 10), which reads on the claimed and elected species of agrochemical active ingredient ammonium glufosinate.
Further regarding claim 1, although the ‘304 claims do not disclose a salt of lauryl ether sulfate as being the claimed and elected species of lauryl ether sulfate monoethanolammonium, Brock et al. discloses mono-, di-, or tri-alkanolammonium salts of alkyl ether sulphate surfactants that give homogenous and free-flowing liquid formulations (abstract) wherein Sample 1 is C₁₂-C₁₄ fatty alcohol ether sulfate 2 mol EO / mol monoethanolammonium salt (page 7 first paragraph) which encompasses instant formula (I) wherein R is linear C12-alkyl (i.e., lauryl); RA, RB, RC, and RD are H; x is 2; and M+ is a monoethanolammonium cation.
Further regarding claim 1, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of the ‘304 claims and Brock et al. by using the monoethanolammonium cation lauryl ether sulfate of Brock et al. as the salt of lauryl ether sulfate in the composition of the ‘304 claims as discussed above, with a reasonable expectation of success. A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so to use a suitable known cation of lauryl ether sulfate therein that results in homogenous and free-flowing liquid formulations as suggested by Brock et al.
Regarding claim 2, as discussed above regarding claim 1, Brock et al. discloses x=2, which reads on the claimed x=1-3.
Regarding claim 3, as discussed above regarding claim 1, Brock et al. discloses the claimed RA, RB, RC, and RD are H.
Regarding claim 4, as discussed above regarding claim 1, the ‘304 claims disclose glufosinate-ammonium, which reads on the claimed glufosinate or salt thereof.
Regarding claim 7, the ‘304 claims disclose 20 to 35 percent by weight, based on the total weight of the composition of the glufosinate salt (claim 1), which overlaps the claimed concentration range of agrochemical active ingredient of 5-50 wt%, and a prima facie case of obviousness exists where prior art and claimed range overlap per MPEP 2144.05(I).
Regarding claim 12, as discussed above regarding claim 1, the ‘304 claims disclose glufosinate-ammonium, which reads on the claimed ammonium salt of glufosinate.
Claims 1-4, 7, and 12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 11 and 18 of U.S. Patent No. 11,375,713 in view of Brock et al.
Regarding claim 1, the ‘713 claims disclose a single phase liquid herbicidal composition comprising a salt of glufosinate and a lauryl ether sulfate or salt thereof (claim 1 as referred to by claim 11, and claim 13 as referred to by claim 18), which reads on the claimed agrochemical composition, wherein the salt of glufosinate is glufosinate-ammonium (claims 11, 18), which reads on the claimed and elected species of agrochemical active ingredient ammonium glufosinate.
Further regarding claim 1, although the ‘713 claims do not disclose a salt of lauryl ether sulfate as being the claimed and elected species of lauryl ether sulfate monoethanolammonium, Brock et al. discloses mono-, di-, or tri-alkanolammonium salts of alkyl ether sulphate surfactants that give homogenous and free-flowing liquid formulations (abstract) wherein Sample 1 is C₁₂-C₁₄ fatty alcohol ether sulfate 2 mol EO / mol monoethanolammonium salt (page 7 first paragraph) which encompasses instant formula (I) wherein R is linear C12-alkyl (i.e., lauryl); RA, RB, RC, and RD are H; x is 2; and M+ is a monoethanolammonium cation.
Further regarding claim 1, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of the ‘713 claims and Brock et al. by using the monoethanolammonium cation lauryl ether sulfate of Brock et al. as the salt of lauryl ether sulfate in the composition of the ‘713 claims as discussed above, with a reasonable expectation of success. A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so to use a suitable known cation of lauryl ether sulfate therein that results in homogenous and free-flowing liquid formulations as suggested by Brock et al.
Regarding claim 2, as discussed above regarding claim 1, Brock et al. discloses x=2, which reads on the claimed x=1-3.
Regarding claim 3, as discussed above regarding claim 1, Brock et al. discloses the claimed RA, RB, RC, and RD are H.
Regarding claim 4, as discussed above regarding claim 1, the ‘713 claims disclose glufosinate-ammonium, which reads on the claimed glufosinate or salt thereof.
Regarding claim 7, the ‘713 claims disclose 20 to 35 percent by weight, based on the total weight of the composition of the glufosinate salt (claim 1 as referred to by claim 11, and claim 13 as referred to by claim 18), which overlaps the claimed concentration range of agrochemical active ingredient of 5-50 wt%, and a prima facie case of obviousness exists where prior art and claimed range overlap per MPEP 2144.05(I).
Regarding claim 12, as discussed above regarding claim 1, the ‘713 claims disclose glufosinate-ammonium, which reads on the claimed ammonium salt of glufosinate.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL B. PALLAY whose telephone number is (571)270-3473. The examiner can normally be reached Monday through Friday from 8:30 AM to 5:00 PM Eastern Time.
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/MICHAEL B. PALLAY/Primary Examiner, Art Unit 1617