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 .
Acknowledgement is made to Applicant’s response filed 10/02/2025.
Claims 1-16 and 18-20 are pending.
Claim 17 is cancelled.
Claims 2, 3, 9, 10, 12-16, 18, and 20 remain withdrawn.
Claims 1-13 and 18-20 are currently amended.
Claims 1, 4-8, 11, and 19 are currently under consideration to the extent that they read upon Applicant’s elected species.
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.
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, 4-8, 11, and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Frisch et al (US 2005/0266995).
Frisch teaches a concentrated aqueous composition comprising (a) L-glufosinate and (b) fomesafen (see entire document, for instance, [0001], [0031], and [0039]). Frisch teaches that the L-glufosinate and fosemate are present in a ratio of 15:1 to 1:4 (see entire document, for instance, [0044] and claim 8).
Frisch, while teaching the instantly claimed components in amounts that directly overlap the instantly claimed amounts, does not exemplify an example wherein all said elements are expressly articulated.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the instantly claimed invention to utilize a ratio of L-glufosinate and fosemate of between 25:1 to 1.3:1. One would have been motivated to do so since Frisch teaches a ratio of 15:1 to 1:4, which directly overlaps the instantly claimed range. It is noted that MPEP 2144.05 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. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997).
Further, regarding the concentration of the components, it is noted that MPEP 2144.05 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).”
Response to Arguments
Applicant argues in the Remarks filed 10/02/2025 that a combination of fomesafen and L-glufosinate is not explicitly disclosed in Frisch. Applicant’s argument is not found persuasive against the ground of rejection set forth above. Specifically, the rejection is made under 103 rather than 102, wherein it would have been obvious, doing nothing more than following the clear and express teachings of Frisch to arrive at a composition comprising fomesafen and L-glufosinate.
Applicant, in response to the assertion that it would have been obvious to optimize the concentrations within the composition, argues that the instant specification demonstrates synergy. Applicant’s argument is not found persuasive. Specifically, the instant specification does not provide any examples demonstrating that the elected species (L-glufosinate and fomesafen) provide synergy. Applicant’s argument is not supported by factual evidence, and therefore, is not found persuasive.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TREVOR M LOVE whose telephone number is (571)270-5259. The examiner can normally be reached M-F typically 6:30-3.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany Barham can be reached at 5712726175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TREVOR LOVE/Primary Examiner, Art Unit 1611