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 .
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.
Claim(s) 1-5, 8-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cremer et al (CA2211200).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Regarding claims 1-3, Cremer teaches combinations of glufosinate and oxyfluorfen wherein the weight ratio is from 10:1 to 2:1, which reads on wherein the total amount of component (i) glufosinate is at least 1.5 times more than the total amount of component (ii) oxyfluorfen, and further reads on wherein the total amount of component (i) to the total amount of component (ii) falls within the claimed ranges of claims 2-3 (see entire document; e.g. pg. 6, ln. 16-22; pg. 1, ln. 19-20; pg. 3, ln. 1-5, ln. 8-9; pg. 3, ln. 24-28; claims; abstract). Cremer also teaches where the concentration of active agents in their compositions/combinations is from 0.1 to 99% by weight of the total active substances A and B, specifically herbicide A) glufosinate or L-glufosinate and herbicide B) which is/can be selected from oxyfluorfen. Cremer also teaches where the concentration of active agents in their compositions/combinations is from 0.1 to 99% by weight of the total active substances A and B, specifically herbicide A) glufosinate or L-glufosinate and herbicide B) which is/can be selected from oxyfluorfen and Cremer teaches wherein their compositions in liquid form, e.g. emulsion, can comprise 1-15% glufosinate which when 1 L of the formulation weighs 1000g would mean comprising up to 150 g/L of glufosinate which reads on the amounts now claimed in claim 1, and wherein the oxyfluorfen is present in the liquid composition can comprise 0.1-5% by weight oxyfluorfen which when 1 L of the formulation weighs 1000g would mean comprising up to 50 g/L which reads on the amounts now claimed in claim 1 (pg. 12, ln. 26-pg. 13, ln. 10; pg. 6, ln. 16-22; pg. 1, ln. 19-20; pg. 3, ln. 1-5, ln. 8-9; pg. 3, ln. 24-28).
Regarding claims 4-5, Cremer teaches that L-glufosinate is the active isomer and that they envision compositions of L-glufosinate (which is at once envisioned from the genus glufosinate) and oxyfluorfen as an embodiment of their invention. Cremer does not differentiate the ratios of racemic glufosinate to oxyfluorfen from those of L-glufosinate to oxyfluorfen, and teaches combinations of glufosinate and oxyfluorfen wherein the weight ratio is from 10:1 to 2:1, which reads on wherein the total amount of component (i) L-glufosinate is at least 0.7 times more than the total amount of component (ii) oxyfluorfen, and further reads on where in the total amount of component (i) to the total amount of component (ii) falls within the claimed ranges of claims 4-5, specifically weight ratios of glufosinate (which is at once envisioned to be the claimed L-glufosinate) to oxyfluorfen of preferably 8:1 to 3:1 which read on the claimed ratios of claims 4-5 (see entire document; e.g. pg. 6, ln. 16-22; pg. 1, ln. 19-20; pg. 3, ln. 1-5, ln. 8-9; pg. 3, ln. 24-28; claims; abstract).
Cremer teaches a composition comprising glufosinate and oxyfluorfen in the claimed ratios as discussed above and glufosinate exists as: racemic DL glufosinate, D-glufosinate, and L-glufosinate, and Cremer teaches that L-glufosinate is the active form of glufosinate and they envision using L-glufosinate in their herbicidal combination with oxyfluorfen. Especially absent a teaching away in the prior art, the generic disclosure of glufosinate will read on the claimed species, L-glufosinate, covered by that disclosure when the species can be “at once envisaged” from the disclosure. One of ordinary skill in the art must be able to draw the structural formula or write the name of each of the compounds included in the generic formula before any of the compounds can be "at once envisaged." One may look to the preferred embodiments to determine which compounds can be anticipated. In re Petering, 301 F.2d 676, 133 USPQ 275 (CCPA 1962).” Further, the recitation of glufosinate would be interpreted to be the racemic glufosinate which comprises L-glufosinate and as such also reads on claim 1.
Regarding claim 11, Cremer teaches a combination/composition of oxyfluorfen and glufosinate being applied to control weeds, etc. and Cremer teaches the providing component (i) and (ii) and combining component (i) and (ii) combining them such that the herbicide combination/composition claimed is obtained (see General formulation examples; biological examples; claims; pg.6, ln. 29-36; pg. 12, ln. 26-pg. 13, ln. 16).
Regarding claim 12, Cremer teaches method of controlling undesired plant growth and/or controlling harmful plants (weeds) comprising the step of applying the combination/composition of glyphosate(typo should say glufosinate) and oxyfluorfen in the claimed ratios onto the undesired plant or the harmful plant, parts of these plants, or the area in which the undesired and/or harmful plants grow (See biological examples; claims; pg. 6, ln. 16-22; pg. 1, ln. 19-20; pg. 3, ln. 1-5, ln. 8-9; pg. 3, ln. 24-28).
Regarding claims 13-14, Cremer teaches the method of claim 12 and further teaches wherein the total amount of (i) applied is 450 gai/ha, and the total amount of (ii) applied is 90 g ai/ha (see biological examples; claims; pg. 6, ln. 16-22; pg. 1, ln. 19-20; pg. 3, ln. 1-5, ln. 8-9; pg. 3, ln. 24-28).
Regarding claim 8, Cremer teaches wherein their compositions in liquid form, e.g. emulsion, can comprise 1-15% glufosinate which when 1 L of the formulation weighs 1000g would mean comprising up to 150 g/L of glufosinate which reads on the amounts of claim 8, and wherein the oxyfluorfen is present in the liquid composition can comprise 0.1-5% by weight oxyfluorfen which when 1 L of the formulation weighs 1000g would mean comprising up to 50 g/L which reads on the amounts of claim 8 (pg. 12, ln. 26-pg. 13, ln. 10; pg. 6, ln. 16-22; pg. 1, ln. 19-20; pg. 3, ln. 1-5, ln. 8-9; pg. 3, ln. 24-28).
Regarding claim 9, Cremer teaches wherein their compositions further comprise one or more additional components selected from the claimed formulation auxiliaries, etc., e.g. solvents, surfactants, etc. (pg. 12, ln. 26-pg. 15, ln. 33; pg. 6, ln. 16-22; pg. 1, ln. 19-20; pg. 3, ln. 1-5, ln. 8-9; pg. 3, ln. 24-28).
Regarding claim 10, Cremer teaches wherein their formulations can be in the form oil-in-water emulsions which are a type of oil dispersion as claimed (pg. 12, ln. 26-pg. 13, ln. 10).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
Cremer does not teach a specific embodiment comprising the claimed g/L with the claimed auxiliaries, and in the claimed form (e.g. oil dispersion).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to optimize the ratios and amounts of glufosinate or L-glufosinate with the oxyfluorfen and the amounts of the oxyfluorfen to fall within the claimed ranges and/or amounts of claims 1 and 8 as discussed above because Cremer teaches that the combinations of glufosinate and oxyfluorfen are known to be used in the claimed ratios and wherein these combinations can be synergistic and as such it would be obvious to optimize the amounts/ratios to provide the most effective synergistic combinations of glufosinate/L-glufosinate with oxyfluorfen and which fall within the claimed ranges/amounts.
It also would have been obvious to formulate the composition as an oil dispersion because Cremer already teaches that preferred formulations for their glufosinate and oxyfluorfen combinations are oil-in-water emulsions which are a type of oil dispersion, e.g. oil suspended/dispersed in water.
Finally, it would have been obvious to formulate the composition with the claimed formulation auxiliaries because it was known to formulate compositions of glufosinate and oxyfluorfen in the claimed ratios with the claimed auxiliaries, e.g. surfactants, etc. as is taught in their examples. Thus, it would be obvious to use these auxiliaries in formulating compositions comprising the same actives in the claimed amounts of g/L as claimed in order to form the most effective synergistic herbicidal glufosinate and oxyfluorfen combinations, especially since Cremer recognizes and teaches that this combination of actives in the ratios claimed is synergistic (pg. 5, ln. 28-pg. 6, ln. 10; biological examples, claims, sections as cited above).
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the 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, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments/Remarks
Applicant’s amendments to the claims and specification have overcome the previous objections to the specification, 112(b), 102 rejections of record and has prompted the new/revised grounds of rejection under 103 which are presented herein. Applicant’s amendments to the claims have prompted the new/revised grounds of rejection presented herein. Applicant’s arguments insofar as they pertain to the revised/new grounds of rejection are addressed herein and are not persuasive at this time.
Firstly, applicants argue that the assumption of the g/L in the compositions of Cremer do not read on the claimed concentrations because Cremer does not disclose the density of their formulations. The examiner respectfully disagrees because Cremer teaches wherein their compositions can be aqueous solutions or emulsions, e.g. o/w (see pg. 8, ln. 3-24), which are primarily water based and as such the density would be approximately the 1000 g/L as is calculated by the examiner. Thus, the calculations by the examiner are not incorrect in the assumption of the composition having approximately the same weight per liter of water. Further, as is clearly discussed above it would have been obvious to optimize the ratios and amounts of glufosinate or L-glufosinate with the oxyfluorfen and the concentrations and/or amounts of the oxyfluorfen to fall within the claimed ranges and/or concentrations/amounts of claims 1 and 8 as discussed above because Cremer teaches that the combinations of glufosinate and oxyfluorfen are known to be used in the claimed ratios and wherein these combinations can be synergistic and as such it would be obvious to optimize the amounts/ratios to provide the most effective synergistic combinations of glufosinate/L-glufosinate with oxyfluorfen and which fall within the claimed ranges/amounts. Applicants then argue that the prior art reference does not teach all limitations of applicant’s claims. The examiner respectfully disagrees for the reasons discussed above and herein because Cremer does teach all limitations of applicant’s claims and render obvious the claimed invention.
Applicants then argue that no apparent reason exists to modify Cremer to arrive at the claimed invention. The examiner respectfully disagrees because the claims only require the claimed two active agents in the claimed ratios and concentrations which are broadly taught by Cremer as is discussed above and further even if Cremer does not expressly teach the claimed concentration they do teach wherein their compositions would comprise close amounts to those instantly claimed and it would have been obvious to optimize the concentrations, ratios, and amounts of oxyfluorfen and glufosinate/L-glufosinate to arrive at the claimed combination because Cremer already recognizes that this combination is synergistic and it is known, “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. ‘[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’" In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Applicants then argue that one of ordinary skill in the art would not have formed the claimed invention when looking to Cremer and that even if they would have, applicants have demonstrated unexpected results which overcome the obviousness rejection of record. The examiner respectfully points out that Cremer already teaches that the claimed combination can/does exhibit synergy and as such applicant’s argued unexpected synergy is not at all unexpected in light of the teachings of Cremer which already predict/disclose synergy for the claimed combination as Cremer specifically teaches that the application rate of the claimed herbicide combination comprising oxyfluorfen and glufosinate in ratios which overlap/specifically read on those instantly claimed allow for much lower rates of herbicide application for the combination than what is used for each herbicide singly to provide the same levels of herbicidal action, and exhibit synergistic activity as per their results in their examples. Thus, the fact that applicants also observe synergy with the same combination of actives already taught to be synergistic by Cremer is not at all unexpected or unpredictable contrary to applicant’s arguments, and it would still be obvious to optimize to achieve the claimed combination because this combination is already known to exhibit synergy and in light of this teaching of Cremer the courts have previously determined, "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the 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, as evidenced by the references, especially in the absence of evidence to the contrary.
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 Erin E Hirt whose telephone number is (571)270-1077. The examiner can normally be reached 10:30-7:30 ET M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue X Liu can be reached at 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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/ERIN E HIRT/Primary Examiner, Art Unit 1616