DETAILED ACTION
Receipt is acknowledged of applicant’s Amendment/Remarks filed 8/21/2025.
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 .
Status of the Claims
Claims 1-5 and 8-14 have been amended. Claims 6, 7 and 15 are cancelled. No claims are newly added. Accordingly, claims 1-5 and 8-14 remain pending in the application. Claims 11-14 stand withdrawn from further consideration, with traverse. Claims 1-5 and 8-10 are currently under examination.
Withdrawn Rejections
Applicant’s amendment renders the rejection of claims 6, 7, 9 and 10 under 35 USC 112(b) moot. Specifically, the claims 6 and 7 have been deleted and the indefinite word “preferably” has been removed from the claims. Thus, said rejection has been withdrawn.
Applicant’s amendment renders the rejection of claim 1 under 35 USC 102 over Winter moot. Specifically, Winter does not anticipate the subject matter (wherein a total amount of component (i) is from 100 to 600 g/L, based on the total amount of the composition; and wherein the total amount of component (ii) is in the range of from 0.15 to 15 g/L, in case of (i) being glufosinate, and in the range of from 0.2 to 30 g/L, in case of (i) being L-glufosinate, in each case based on the total amount of the composition) that has been newly added to claim 1. Thus, said rejection has been withdrawn.
Applicant’s amendment renders the double patenting rejection of claims 1 and 4-10 over USPN 12,041,935 moot. Thus, said rejection has been withdrawn. However, after further consideration, the previous double patenting rejection of claims 1-3 over USPN 12,041,935 in view of Winter is relevant to the amended claims. Thus, claims 4, 5 and 8-10 have been added to the rejection over USPN 12,041,935 in view of Winter.
Maintained/Modified Rejections
The following rejections are maintained. Modifications have been made to account for the claim amendments.
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 8-10 stand rejected under 35 U.S.C. 103 as being unpatentable over Winter et al. (WO 2019/030098 A1, Feb. 14, 2019, hereafter as “Winter”).
The instant invention is drawn to a herbicide combination comprising (i) glufosinate or L-glufosinate or an agronomically acceptable salt thereof, and (ii) trifludimoxazin, wherein a ratio by weight of a total amount of component (i) is at least 40 times more than the total amount of component (ii) in case of (i) being glufosinate, and is at least 20 times more than the total amount of component (ii) in case of (i) being L-glufosinate; wherein a total amount of component (i) is from 100 to 600 g/L, based on the total amount of the composition; and wherein the total amount of component (ii) is in the range of from 0.15 to 15 g/L, in case of (i) being glufosinate, and in the range of from 0.2 to 30 g/L, in case of (i) being L-glufosinate, in each case based on the total amount of the composition.
Regarding instant claim 1, Winter teaches an herbicidal mixture comprising L-glufosinate or its salt and at least one protoporphyrinogen-IX oxidase inhibitor (abstract). Winter also exemplifies an herbicidal combination comprising L-glufosinate and trifludimoxazin wherein L-glufosinate is included in an amount of at least 20 times more than the amount of trifludimoxazin (Example 3 at page 33).
Winter is silent to L-glufosinate in an amount from 100-600 g/L (instant claim 1).
However, Winter also teaches that an herbicidal formulation comprising a herbicidally active mixture and at least one carrier material, including liquid and/or solid carrier materials (page 12, lines 35-37). Winter additionally teaches L-glufosinate is usually from 50 g/ha to 3000 g/ha and preferably in the range from 100 g/ha to 2000 g/ha or from 200 g/ha to 1500 g/ha (page 31, lines 28-32) and “usually, 20 to 2000 liters, preferably 50 to 400 liters, of the ready-to-use spray liquor are applied per hectare of agricultural useful area” (page 13, lines 1-5).
Utilizing the teachings that L-glufosinate is usually applied from 50 g/ha to 3000 g/ha and 20 to 2000 liters per hectare to an agricultural area, one of ordinary skill can calculate 50-3000 g / 20-2000 L which equates to a range of 0.025-150 g/L. MPEP 2144.05(I) states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. The claimed range of 100-600 g/L overlaps with the prior art range of 0.025-150 g/L and, as such, a prima facie case of obviousness exists.
Winter is silent to trifludimoxazin in an amount from 0.2-30 g/L (instant claim 1).
However, Winter also teaches the rate of application of the protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is from 1 g/ha to 2000 g/ha and preferably in the range from 5 g/ha to 1500 g/ha, more preferably from 25 g/ha to 900 g/ha (page 31, lines 28-32) and “usually, 20 to 2000 liters, preferably 50 to 400 liters, of the ready-to-use spray liquor are applied per hectare of agricultural useful area” (page 13, lines 1-5).
Utilizing the teachings that protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is usually applied in an amount from 1 g/ha to 2000 g/ha and 20 to 2000 liters per hectare to an agricultural area, one of ordinary skill can calculate 1-2000 g / 20-2000 L which equates to a range of 0.05-100 g/L. MPEP 2144.05(I) states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. The claimed range of 0.2-30 g/L lies inside the prior art range of 0.05-100 g/L and, as such, a prima facie case of obviousness exists.
Regarding instant claims 2 and 3, said claims depend ultimately from claim 1. Claim 1 requires glufosinate or L-glufosinate (or salts thereof) in the alternative. Instant claims 2 and 3 do not further limit component (i) as glufosinate. Rather, the ratio of component (i) to component (ii) if (i) is glufosinate. Winter, as discussed above, teaches the combination of L-glufosinate and trifludimoxazin. Thus, the limitations of claims 2 and 3 are considered optional as said limitations do not pertain to component (i) when component (i) is L-glufosinate. Winter, therefore, meets the limitations of the claims.
Regarding instant claims 4 and 5, Winter, as discussed above, teaches the combination of L-glufosinate and trifludimoxazin.
Winter is silent to the particular ratio ranges of L-glufosinate to trifludimoxazin being 500:1 to 25:1 (instant claim 4) or 250:1 to 30:1 (instant claim 5).
Winter additionally teaches the rate of application of L-glufosinate is usually from 50 g/ha to 3000 g/ha and preferably in the range from 100 g/ha to 2000 g/ha or from 200 g/ha to 1500 g/ha, and the rate of application of the protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is from 1 g/ha to 2000 g/ha and preferably in the range from 5 g/ha to 1500 g/ha, more preferably from 25 g/ha to 900 g/ha (page 31, lines 28-32).
MPEP 2144.05(I)(A) states,
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) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.")
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the concentrations of L-glufosinate and trifludimoxazin and ratios thereof and arrive at the claimed ranges by way of routine experimentation with a reasonable expectation of success. A skilled artisan would have been motivated to do so because Winter teaches concentration ranges of each active and it is the normal desire of scientists or artisans to improve upon what is already generally known to determine where in a disclosed set of concentration ranges is the optimum combination of concentrations.
Regarding instant claim 8, Winter teaches the elements discussed above.
Winter is silent to L-glufosinate in an amount from 150-500 g/L.
However, Winter teaches that an herbicidal formulation comprising a herbicidally active mixture and at least one carrier material, including liquid and/or solid carrier materials (page 12, lines 35-37). Winter additionally teaches L-glufosinate is usually from 50 g/ha to 3000 g/ha and preferably in the range from 100 g/ha to 2000 g/ha or from 200 g/ha to 1500 g/ha (page 31, lines 28-32) and “usually, 20 to 2000 liters, preferably 50 to 400 liters, of the ready-to-use spray liquor are applied per hectare of agricultural useful area” (page 13, lines 1-5).
Utilizing the teachings that L-glufosinate is usually applied from 50 g/ha to 3000 g/ha and 20 to 2000 liters per hectare to an agricultural area, one of ordinary skill can calculate 50-3000 g / 20-2000 L which equates to a range of 0.025-150 g/L. MPEP 2144.05(I) states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. The claimed range of 150-500 g/L overlaps with the prior art range of 0.025-150 g/L and, as such, a prima facie case of obviousness exists.
Winter is silent to trifludimoxazin in an amount from 0.4-20 g/L.
However, Winter also teaches the rate of application of the protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is from 1 g/ha to 2000 g/ha and preferably in the range from 5 g/ha to 1500 g/ha, more preferably from 25 g/ha to 900 g/ha (page 31, lines 28-32) and “usually, 20 to 2000 liters, preferably 50 to 400 liters, of the ready-to-use spray liquor are applied per hectare of agricultural useful area” (page 13, lines 1-5).
Utilizing the teachings that protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is usually applied in an amount from 1 g/ha to 2000 g/ha and 20 to 2000 liters per hectare to an agricultural area, one of ordinary skill can calculate 1-2000 g / 20-2000 L which equates to a range of 0.05-100 g/L. MPEP 2144.05(I) states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. The claimed range of 0.4-20 g/L lies inside the prior art range of 0.05-100 g/L and, as such, a prima facie case of obviousness exists.
Regarding instant claim 9, Winter teaches the inclusion of auxiliary agents or conventional additives, (page 9, line 11 – page 10, line 32). Winter also teaches an herbicidal mixture comprising L-glufosinate or its salt and at least one protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) (abstract). The phrase “at least one” indicates that an additional protoporphyrinogen-IX oxidase inhibitor can further be included.
Regarding instant claim 10, Winter teaches the inventive mixtures can be formulated into suspension concentrates (SC), oil dispersions (OD), or microcapsules (CS) (page 11, lines 10-15 and page 11, line 37 – page 12, line 5).
Thus, the teachings of Winter render the instant claims prima facie obvious.
Response to Arguments
Applicant's arguments, filed 8/21/2025, regarding the 103 rejection over Winter have been fully considered but they are not persuasive.
Applicant argues that WO ‘098 (“Winter”) does not teach or suggest a combination of the total amounts and wight ratios of components (i) and (ii) as claimed in amended claim 1. Applicant states that there is no apparent reason to modify the reference to arrive at the claimed invention. Remarks, pages 6-8.
In response, it is respectfully submitted that Winter teaches an herbicidal mixture comprising L-glufosinate or its salt and at least one protoporphyrinogen-IX oxidase inhibitor (abstract). Winter also exemplifies an herbicidal combination comprising L-glufosinate and trifludimoxazin wherein L-glufosinate is included in an amount of at least 20 times more than the amount of trifludimoxazin (Example 3 at page 33). Winter teaches the rate of application of L-glufosinate is usually from 50 g/ha to 3000 g/ha and preferably in the range from 100 g/ha to 2000 g/ha or from 200 g/ha to 1500 g/ha (page 31, lines 28-32) and “usually, 20 to 2000 liters, preferably 50 to 400 liters, of the ready-to-use spray liquor are applied per hectare of agricultural useful area” (page 13, lines 1-5). While Winter is silent to L-glufosinate in an amount from 100-600 g/L, utilizing the teachings of L-glufosinate is usually applied from 50 g/ha to 3000 g/ha and 20 to 2000 liters per hectare to an agricultural area, one of ordinary skill can calculate 50-3000 g / 20-2000 L which equates to a range of 0.025-150 g/L. MPEP 2144.05(I) states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. The claimed range of 100-600 g/L overlaps with the prior art range of 0.025-150 g/L and, as such, a prima facie case of obviousness exists. Winter also teaches the rate of application of the protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is from 1 g/ha to 2000 g/ha and preferably in the range from 5 g/ha to 1500 g/ha, more preferably from 25 g/ha to 900 g/ha (page 31, lines 28-32) and “usually 20 to 2000 liters, preferably 50 to 400 liters, of the ready-to-use spray liquor are applied per hectare of agricultural useful area” (page 13, lines 1-5). While Winter is silent to trifludimoxazin in an amount from 0.2-30 g/L, utilizing the teachings that protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is usually applied in an amount from 1 g/ha to 2000 g/ha and 20 to 2000 liters per hectare to an agricultural area, one of ordinary skill can calculate 1-2000 g / 20-2000 L which equates to a range of 0.05-100 g/L. MPEP 2144.05(I) states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. The claimed range of 0.2-30 g/L lies inside the prior art range of 0.05-100 g/L and, as such, a prima facie case of obviousness exists. Thus, with respect to the combination of L-glufosinate and trifludimoxazin, Winter renders the claimed amounts and ratios prima facie obvious for the reasons discussed above. It is noted that independent claim 1 requires glufosinate or L-glufosinate in the alternative. Thus, contrary to Applicant’s assertions, Winter meets the limitations of the claim.
Applicant also argues that the skilled person could not have predicted the synergistic effects provided by the claimed composition and points to experimental data at pages 25-26 of the instant specification. Remarks, pages 8-9.
In response, it is respectfully submitted that the data provided in Tables 1 and 2 of the instant specification demonstrate the specific combination of trifludimoxazin in the amount of 6.25 g ai/ha and glufosinate in the amount of 246 g ai/ha. A ratio of 246 to 6.25 calculates to 39.36 which does not fall within the claimed range of “at least 40 times more than the total amount of component (ii) in case of (i) being glufosinate”. Further, the claims are much broader than the data provided. First, there is no data provided for the compound, L-glufosinate. Second, the concentration ranges claimed are 100 to 600 g/L of glufosinate and 0.15 to 15 g/L of trifludimoxazin in the case of (i) being glufosinate. Accordingly, the data provided is not commensurate in scope with the claimed invention. See MPEP 716.02(d). Thus, the data is not effective in overcoming the prima facie case of obviousness.
Thus, for these reasons, Applicant’s arguments are found unpersuasive. Said rejection is maintained.
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 1-5 and 8-10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 of U.S. Patent No. 12,041,935 in view of Winter et al. (WO 2019/030098 A1, Feb. 14, 2019, hereafter as “Winter”).
Although the claims at issue are not identical, they are not patentably distinct from each other because the subject matter of the instant claims and the subject matter of the patented claims are significantly overlapping.
The instant invention is described above.
The patented claims are drawn to a herbicidal mixture comprising a) L-glufosinate and its salts as compound I; and b) trifludimoxazin as compound II; wherein: L-glufosinate comprises more than 90% by weight of the L-enantiomer; and the weight ratio of compound I to compound II is from 400:1 to 1:1.
The patented claims do not explicitly recite “wherein a ratio by weight of a total amount of component (i) is at least 40 times more than the total amount of component (ii) in case of (i) being glufosinate, and is at least 20 times more than the total amount of component (ii) in case of (i) being L-glufosinate”, however the patent recites “the weight ratio of compound I to compound II is from 400:1 to 1:1”.
MPEP 2144.05(I) states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. The ratios recited in the patent overlap with the ratios claimed in the instant application and, thus, a prima facie case of obviousness exists. Further, MPEP 2144.05(II)(A) states, “[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”. It would have also been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the ratio range of L-glufosinate to trifludimoxazin by way of routine experimentation with a reasonable expectation of success because the patent teaches the general conditions of the claim and it is the normal desire of scientists or artisans to improve upon what is already generally known to determine where in a disclosed set of concentration ranges is the optimum combination of concentrations.
The patent does not recite L-glufosinate in an amount from 100-600 g/L or trifludimoxazin in an amount from 0.2-30 g/L.
Winter teaches an herbicidal mixture comprising L-glufosinate or its salt and at least one protoporphyrinogen-IX oxidase inhibitor (abstract). Winter also exemplifies an herbicidal combination comprising L-glufosinate and trifludimoxazin wherein L-glufosinate is included in an amount of at least 20 times more than the amount of trifludimoxazin (Example 3 at page 33). Winter teaches the rate of application of L-glufosinate is usually from 50 g/ha to 3000 g/ha and preferably in the range from 100 g/ha to 2000 g/ha or from 200 g/ha to 1500 g/ha (page 31, lines 28-32) and “usually, 20 to 2000 liters, preferably 50 to 400 liters, of the ready-to-use spray liquor are applied per hectare of agricultural useful area” (page 13, lines 1-5). Winter also teaches the rate of application of the protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is from 1 g/ha to 2000 g/ha and preferably in the range from 5 g/ha to 1500 g/ha, more preferably from 25 g/ha to 900 g/ha (page 31, lines 28-32) and “usually 20 to 2000 liters, preferably 50 to 400 liters, of the ready-to-use spray liquor are applied per hectare of agricultural useful area” (page 13, lines 1-5).
Utilizing the teachings that L-glufosinate is usually applied from 50 g/ha to 3000 g/ha and 20 to 2000 liters per hectare to an agricultural area, one of ordinary skill can calculate 50-3000 g / 20-2000 L which equates to a range of 0.025-150 g/L.
Utilizing the teachings that protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is usually applied in an amount from 1 g/ha to 2000 g/ha and 20 to 2000 liters per hectare to an agricultural area, one of ordinary skill can calculate 1-2000 g / 20-2000 L which equates to a range of 0.05-100 g/L.
The patent and Winter are drawn to compositions comprising the combination of L-glufosinate and trifludimoxazin, thus, it would have also been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include that amounts of each ingredient taught by Winter into the patent and further optimize said amounts of L-glufosinate to trifludimoxazin by way of routine experimentation with a reasonable expectation of success. A skilled artisan would have been motivated to do so because Winter teaches the general conditions of the claim and it is the normal desire of scientists or artisans to improve upon what is already generally known to determine where in a disclosed set of concentration ranges is the optimum combination of concentrations.
Thus, the instant claims are unpatentable over the patented claims in view of teachings of Winter.
Claims 1-5 and 8-10 stand rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 12,262,715 B2 in view of Winter et al. (WO 2019/030098 A1, Feb. 14, 2019, hereafter as “Winter”).
The instant claims are described above.
The patent is drawn to a herbicidal mixture comprising a) L-glufosinate and its salts as compound I; and b) 2-[2-[[3-chloro-6-[3,6-dihydro-3-methyl-2,6-dioxo-4-(trifluoromethyl)-1 (2H)-pyrimidinyl]-5-fluoro-2-pyridinyl]oxy]phenoxy]-acetic acid ethyl ester (CAS 2158274-50-9; II-21) as compound II; wherein: L-glufosinate comprises more than 90% by weight of the L-enantiomer; the weight ratio of compound I to compound II is from 1000:1 to 2:1; and the herbicidal mixture does not contain any other herbicide; and a method of using thereof. The patent further recites weight ratios of compound I to compound II including 50:1 to 2:1 or 1000:1 to 8:1 or 500:1 to 2:1.
The patent does not recite L-glufosinate or glufosinate in combination with trifludimoxazin.
Winter teaches an herbicidal mixture comprising L-glufosinate or its salt and at least one protoporphyrinogen-IX oxidase inhibitor (abstract). Winter also teaches protoporphyrinogen-IX oxidase inhibitors including 2-[2-[[3- chloro-6-[3,6-dihydro-3-methyl-2,6-dioxo-4-(trifluoromethyl)-1 (2H)-pyrimidinyl]-5-fluoro-2- pyridinyl]oxy]phenoxy]-acetic acid ethyl ester (CAS 2158274-50-9) and trifludimoxazin (page 3, lines 3-41). Winter also teaches that glufosinate and its salts are known herbicides (page 2, lines 4-11). Winter further teaches that glufosinate is a racemate of two enantiomers (i.e., 1:1 ratio), one which only one shows sufficient herbicidal activity, i.e., L-glufosinate (page 2, lines 28-32).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine L-glufosinate and trifludimoxazin in the ratios claimed by way of routine experimentation with a reasonable expectation of success because Winter effectively teaches that 2-[2-[[3- chloro-6-[3,6-dihydro-3-methyl-2,6-dioxo-4-(trifluoromethyl)-1 (2H)-pyrimidinyl]-5-fluoro-2- pyridinyl]oxy]phenoxy]-acetic acid ethyl ester (CAS 2158274-50-9) and trifludimoxazin are functional equivalents (i.e., both are protoporphyrinogen-IX oxidase inhibitors) and substituting known equivalents for the same purpose is prima facie obvious (MPEP 2144.06).
The patent does not recite L-glufosinate in an amount from 100-600 g/L or trifludimoxazin in an amount from 0.2-30 g/L.
Winter teaches an herbicidal mixture comprising L-glufosinate or its salt and at least one protoporphyrinogen-IX oxidase inhibitor (abstract). Winter also exemplifies an herbicidal combination comprising L-glufosinate and trifludimoxazin wherein L-glufosinate is included in an amount of at least 20 times more than the amount of trifludimoxazin (Example 3 at page 33). Winter teaches the rate of application of L-glufosinate is usually from 50 g/ha to 3000 g/ha and preferably in the range from 100 g/ha to 2000 g/ha or from 200 g/ha to 1500 g/ha (page 31, lines 28-32) and “usually, 20 to 2000 liters, preferably 50 to 400 liters, of the ready-to-use spray liquor are applied per hectare of agricultural useful area” (page 13, lines 1-5). Winter also teaches the rate of application of the protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is from 1 g/ha to 2000 g/ha and preferably in the range from 5 g/ha to 1500 g/ha, more preferably from 25 g/ha to 900 g/ha (page 31, lines 28-32) and “usually 20 to 2000 liters, preferably 50 to 400 liters, of the ready-to-use spray liquor are applied per hectare of agricultural useful area” (page 13, lines 1-5).
Utilizing the teachings that L-glufosinate is usually applied from 50 g/ha to 3000 g/ha and 20 to 2000 liters per hectare to an agricultural area, one of ordinary skill can calculate 50-3000 g / 20-2000 L which equates to a range of 0.025-150 g/L.
Utilizing the teachings that protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is usually applied in an amount from 1 g/ha to 2000 g/ha and 20 to 2000 liters per hectare to an agricultural area, one of ordinary skill can calculate 1-2000 g / 20-2000 L which equates to a range of 0.05-100 g/L.
The patent and Winter are drawn to compositions comprising the combination of L-glufosinate and trifludimoxazin, thus, it would have also been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include that amounts of each ingredient taught by Winter into the patent and further optimize said amounts of L-glufosinate to trifludimoxazin by way of routine experimentation with a reasonable expectation of success. A skilled artisan would have been motivated to do so because Winter teaches the general conditions of the claim and it is the normal desire of scientists or artisans to improve upon what is already generally known to determine where in a disclosed set of concentration ranges is the optimum combination of concentrations.
Thus, the instant claims are unpatentable over the patented claims in view of Winter.
Claims 1-5 and 8-10 stand rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 12,256,739 B2 in view of Winter et al. (WO 2019/030098 A1, Feb. 14, 2019, hereafter as “Winter”).
The instant claims are described above.
The patent is drawn to a herbicidal mixture comprising a) L-glufosinate and its salts as compound I; and b) saflufenacil as compound II; wherein: L-glufosinate comprises more than 90% by weight of the L-enantiomer; the weight ratio of compound I to compound II is from 600:1 to 2:1; and the herbicidal mixture does not contain any other herbicide; and a method of using thereof. The patent further recites weight ratios of compound I to compound II including 50:1 to 2:1 or 200:1 to 2:1.
The patent does not recite L-glufosinate or glufosinate in combination with trifludimoxazin.
Winter teaches an herbicidal mixture comprising L-glufosinate or its salt and at least one protoporphyrinogen-IX oxidase inhibitor (abstract). Winter also teaches protoporphyrinogen-IX oxidase inhibitors including saflufenacil and trifludimoxazin (page 3, lines 3-41). Winter also teaches that glufosinate and its salts are known herbicides (page 2, lines 4-11). Winter further teaches that glufosinate is a racemate of two enantiomers (i.e., 1:1 ratio), one which only one shows sufficient herbicidal activity, i.e., L-glufosinate (page 2, lines 28-32).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine L-glufosinate and trifludimoxazin in the ratios claimed by way of routine experimentation with a reasonable expectation of success because Winter effectively teaches that saflufenacil and trifludimoxazin are functional equivalents (i.e., both are protoporphyrinogen-IX oxidase inhibitors) and substituting known equivalents for the same purpose is prima facie obvious (MPEP 2144.06).
The patent does not recite L-glufosinate in an amount from 100-600 g/L or trifludimoxazin in an amount from 0.2-30 g/L.
Winter teaches an herbicidal mixture comprising L-glufosinate or its salt and at least one protoporphyrinogen-IX oxidase inhibitor (abstract). Winter also exemplifies an herbicidal combination comprising L-glufosinate and trifludimoxazin wherein L-glufosinate is included in an amount of at least 20 times more than the amount of trifludimoxazin (Example 3 at page 33). Winter teaches the rate of application of L-glufosinate is usually from 50 g/ha to 3000 g/ha and preferably in the range from 100 g/ha to 2000 g/ha or from 200 g/ha to 1500 g/ha (page 31, lines 28-32) and “usually, 20 to 2000 liters, preferably 50 to 400 liters, of the ready-to-use spray liquor are applied per hectare of agricultural useful area” (page 13, lines 1-5). Winter also teaches the rate of application of the protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is from 1 g/ha to 2000 g/ha and preferably in the range from 5 g/ha to 1500 g/ha, more preferably from 25 g/ha to 900 g/ha (page 31, lines 28-32) and “usually 20 to 2000 liters, preferably 50 to 400 liters, of the ready-to-use spray liquor are applied per hectare of agricultural useful area” (page 13, lines 1-5).
Utilizing the teachings that L-glufosinate is usually applied from 50 g/ha to 3000 g/ha and 20 to 2000 liters per hectare to an agricultural area, one of ordinary skill can calculate 50-3000 g / 20-2000 L which equates to a range of 0.025-150 g/L.
Utilizing the teachings that protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is usually applied in an amount from 1 g/ha to 2000 g/ha and 20 to 2000 liters per hectare to an agricultural area, one of ordinary skill can calculate 1-2000 g / 20-2000 L which equates to a range of 0.05-100 g/L.
The patent and Winter are drawn to compositions comprising the combination of L-glufosinate and trifludimoxazin, thus, it would have also been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include that amounts of each ingredient taught by Winter into the patent and further optimize said amounts of L-glufosinate to trifludimoxazin by way of routine experimentation with a reasonable expectation of success. A skilled artisan would have been motivated to do so because Winter teaches the general conditions of the claim and it is the normal desire of scientists or artisans to improve upon what is already generally known to determine where in a disclosed set of concentration ranges is the optimum combination of concentrations.
Thus, the instant claims are unpatentable over the patented claims in view of Winter.
Claims 1-5 and 8-10 stand rejected on the ground of nonstatutory double patenting as being unpatentable over claims 9-20 of U.S. Patent No. 11,363,818 B2 in view of Winter et al. (WO 2019/030098 A1, Feb. 14, 2019, hereafter as “Winter”).
The instant claims are described above.
The patent is drawn to method for controlling undesirable vegetation in glufosinate tolerant soybeans comprising applying to the undesirable vegetation or the locus thereof or applying to the soil or water an herbicidal mixture comprising a) L-glufosinate and its salts as compound I, and b) at least one herbicidal compound II selected from the group consisting of saflufenacil, sulfentrazone, trifludimoxazin, and compound II-89; wherein L-glufosinate comprises more than 70% by weight of the L-enantiomer. The patent also recites that the weight ratio of compound I to herbicidal compound II is from 500:1 to 1:250 or 50:1 to 1:5. The patent further recites wherein the at least one herbicidal compound II is trifludimoxazin.
The patent does not recite L-glufosinate in an amount from 100-600 g/L or trifludimoxazin in an amount from 0.2-30 g/L.
Winter teaches an herbicidal mixture comprising L-glufosinate or its salt and at least one protoporphyrinogen-IX oxidase inhibitor (abstract). Winter also exemplifies an herbicidal combination comprising L-glufosinate and trifludimoxazin wherein L-glufosinate is included in an amount of at least 20 times more than the amount of trifludimoxazin (Example 3 at page 33). Winter teaches the rate of application of L-glufosinate is usually from 50 g/ha to 3000 g/ha and preferably in the range from 100 g/ha to 2000 g/ha or from 200 g/ha to 1500 g/ha (page 31, lines 28-32) and “usually, 20 to 2000 liters, preferably 50 to 400 liters, of the ready-to-use spray liquor are applied per hectare of agricultural useful area” (page 13, lines 1-5). Winter also teaches the rate of application of the protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is from 1 g/ha to 2000 g/ha and preferably in the range from 5 g/ha to 1500 g/ha, more preferably from 25 g/ha to 900 g/ha (page 31, lines 28-32) and “usually 20 to 2000 liters, preferably 50 to 400 liters, of the ready-to-use spray liquor are applied per hectare of agricultural useful area” (page 13, lines 1-5).
Utilizing the teachings that L-glufosinate is usually applied from 50 g/ha to 3000 g/ha and 20 to 2000 liters per hectare to an agricultural area, one of ordinary skill can calculate 50-3000 g / 20-2000 L which equates to a range of 0.025-150 g/L.
Utilizing the teachings that protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is usually applied in an amount from 1 g/ha to 2000 g/ha and 20 to 2000 liters per hectare to an agricultural area, one of ordinary skill can calculate 1-2000 g / 20-2000 L which equates to a range of 0.05-100 g/L.
The patent and Winter are drawn to compositions comprising the combination of L-glufosinate and trifludimoxazin, thus, it would have also been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include that amounts of each ingredient taught by Winter into the patent and further optimize said amounts of L-glufosinate to trifludimoxazin by way of routine experimentation with a reasonable expectation of success. A skilled artisan would have been motivated to do so because Winter teaches the general conditions of the claim and it is the normal desire of scientists or artisans to improve upon what is already generally known to determine where in a disclosed set of concentration ranges is the optimum combination of concentrations.
Thus, the instant claims are unpatentable over the patented claims in view of Winter.
Claims 1-5 and 8-10 stand provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 16-30 of copending Application No. 18/952,632 in view of Winter et al. (WO 2019/030098 A1, Feb. 14, 2019, hereafter as “Winter”).
The instant claims are described above.
The copending claims are drawn to a herbicidal mixture comprising a) L-glufosinate and its salts as compound I; and b) ethyl [3-[2-chloro-4-fluoro-5-(1-methyl-6-trifluoromethyl-2,4-dioxo-1,2,3,4- tetrahydropyrimidin-3-yl)phenoxy]-2-pyridyloxy]acetate (CAS 353292-31-6; S-3100; 11-16) as compound II; wherein L-glufosinate comprises more than 70% by weight of the L-enantiomer; a composition thereof; and a method of using thereof. The patent further recites weight ratios of compound I to compound II including 1000:1 to 1:500 or 50:1 to 1:5.
The patent does not recite L-glufosinate or glufosinate in combination with trifludimoxazin.
Winter teaches an herbicidal mixture comprising L-glufosinate or its salt and at least one protoporphyrinogen-IX oxidase inhibitor (abstract). Winter also teaches protoporphyrinogen-IX oxidase inhibitors including ethyl [3-[2-chloro-4-fluoro-5-(1 -methyl-6-trifluoromethyl-2,4-dioxo-1 ,2,3,4- tetrahydropyrimidin-3-yl)phenoxy]-2-pyridyloxy]acetate (CAS 353292-31-6) and trifludimoxazin (page 3, lines 3-41). Winter also teaches that glufosinate and its salts are known herbicides (page 2, lines 4-11). Winter further teaches that glufosinate is a racemate of two enantiomers (i.e., 1:1 ratio), one which only one shows sufficient herbicidal activity, i.e., L-glufosinate (page 2, lines 28-32).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine L-glufosinate and trifludimoxazin in the ratios claimed by way of routine experimentation with a reasonable expectation of success because Winter effectively teaches that ethyl [3-[2-chloro-4-fluoro-5-(1 -methyl-6-trifluoromethyl-2,4-dioxo-1 ,2,3,4- tetrahydropyrimidin-3-yl)phenoxy]-2-pyridyloxy]acetate (CAS 353292-31-6) and trifludimoxazin are functional equivalents (i.e., both are protoporphyrinogen-IX oxidase inhibitors) and substituting known equivalents for the same purpose is prima facie obvious (MPEP 2144.06).
The patent does not recite L-glufosinate in an amount from 100-600 g/L or trifludimoxazin in an amount from 0.2-30 g/L.
Winter teaches an herbicidal mixture comprising L-glufosinate or its salt and at least one protoporphyrinogen-IX oxidase inhibitor (abstract). Winter also exemplifies an herbicidal combination comprising L-glufosinate and trifludimoxazin wherein L-glufosinate is included in an amount of at least 20 times more than the amount of trifludimoxazin (Example 3 at page 33). Winter teaches the rate of application of L-glufosinate is usually from 50 g/ha to 3000 g/ha and preferably in the range from 100 g/ha to 2000 g/ha or from 200 g/ha to 1500 g/ha (page 31, lines 28-32) and “usually, 20 to 2000 liters, preferably 50 to 400 liters, of the ready-to-use spray liquor are applied per hectare of agricultural useful area” (page 13, lines 1-5). Winter also teaches the rate of application of the protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is from 1 g/ha to 2000 g/ha and preferably in the range from 5 g/ha to 1500 g/ha, more preferably from 25 g/ha to 900 g/ha (page 31, lines 28-32) and “usually 20 to 2000 liters, preferably 50 to 400 liters, of the ready-to-use spray liquor are applied per hectare of agricultural useful area” (page 13, lines 1-5).
Utilizing the teachings that L-glufosinate is usually applied from 50 g/ha to 3000 g/ha and 20 to 2000 liters per hectare to an agricultural area, one of ordinary skill can calculate 50-3000 g / 20-2000 L which equates to a range of 0.025-150 g/L.
Utilizing the teachings that protoporphyrinogen-IX oxidase inhibitor (e.g., trifludimoxazin) is usually applied in an amount from 1 g/ha to 2000 g/ha and 20 to 2000 liters per hectare to an agricultural area, one of ordinary skill can calculate 1-2000 g / 20-2000 L which equates to a range of 0.05-100 g/L.
The patent and Winter are drawn to compositions comprising the combination of L-glufosinate and trifludimoxazin, thus, it would have also been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include that amounts of each ingredient taught by Winter into the patent and further optimize said amounts of L-glufosinate to trifludimoxazin by way of routine experimentation with a reasonable expectation of success. A skilled artisan would have been motivated to do so because Winter teaches the general conditions of the claim and it is the normal desire of scientists or artisans to improve upon what is already generally known to determine where in a disclosed set of concentration ranges is the optimum combination of concentrations.
Thus, the instant claims are unpatentable over the copending claims in view of Winter.
This is a provisional nonstatutory double patenting rejection.
Response to Arguments
Applicant's arguments, filed 8/21/2025, regarding the double patenting rejections over USPNs 12.041,935, 12,262,715, 12,256,739, 11,363,818, and USPA 18/951,632 all in view of Winter have been fully considered but they are not persuasive.
Applicant argues that the present claims would not have been obvious over the patents for the same reasons that the present claims would not have been obvious over Winter as discussed in the response to the 103 rejection over Winter. Remarks, page 9.
In response, it is respectfully submitted that for the same reasons as discussed with respect to Winter above, Applicant’s argument are unpersuasive.
Applicant essentially requests the provisional rejection over application 18/952,632 in view of Winter to be held in abeyance. Remarks, page 10.
In response, it is respectfully submitted that Applicant’s request is acknowledged. At this time, the rejection is still applicable and, therefore, maintained.
Thus, for these reasons, Applicant’s arguments are found unpersuasive. Said rejections are maintained.
Rejoinder
Applicant requests rejoinder of at least claims 12-14. Remarks, page 10.
Applicant’s request is acknowledged. As indicated in the Restriction Requirement dated 2/18/2025 (page 5), when all product claims are found allowable, withdrawn process claims that include all of the limitations of the allowable product claims will be considered for rejoinder.
Pertinent Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Sada (USPN 10,555,528, Feb. 11, 2020, hereafter as “Sada”) teaches herbicidal compositions comprising the particular combination of trifludimoxazin and glufosinate in a ratio of at least 1:2000.
Conclusion
All claims have been rejected; 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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CASEY HAGOPIAN whose telephone number is (571)272-6097. The examiner can normally be reached on M-F 9:00 am - 3:30 pm.
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Casey S. Hagopian
Examiner, Art Unit 1617
/CARLOS A AZPURU/Primary Examiner, Art Unit 1617