DETAILED ACTION
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 05/19/2026 has been entered.
Status of the Claims
Claims 3, 4, 16-25, 31, 32, and 34-88 have been cancelled in a previous communication. Claims 1, 2, 5-15, 26-30, and 33 are pending. Claims 27-30 and 33 stand withdrawn without traverse.
Claims 1, 2, 5-15, and 26 are under current examination.
A terminal disclaimer is on file for US Patent No. 11,419,329.
All rejections not reiterated have been withdrawn.
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter 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 pre-AIA 35 U.S.C. 103(a) 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 under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 1, 2, 5-15, and 26 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gerstner (DE 102008032537; publication date: 01/14/2010; available as prior art under 35 USC 102(a); citing the English machine translation; of record) in view of Winston (US Patent No. 5,443,835; issue date: 08/22/1995; cited in the IDS filed 02/08/2023), Huchet et al. (US PGPub No. 2008/0089857; publication date: 04/17/2008; cited in the IDS filed 02/08/2023), Sakamoto et al. (US 2007/0158621; publication date: 07/12/2007; of record), Tadros et al. (US 6,649,190; publication date: 11/18/2003; cited in the IDS filed 02/08/2023), and Caulder et al. (US Patent No. 5,196,044; issue date: 03/23/1993; cited in the IDS filed 02/08/2023).
With regard to claims 1, 2, 7, 9-12, and 26, Gerstner discloses a direct application herbicide wherein the carrier has a viscosity such that the herbicide composition adheres to the parts of the plant that are above the ground (title). The composition contains the herbicide and a carrier selected from inter alia a hydrogel (claims 1-3). Gerstner recognized that spraying or pouring weed killer has the disadvantage of “not very purposeful application to the weed” (i.e. accidental contact with plants not intended to be killed) causing damage to ornamental plants, ground cover, or lawns (page 1). Gerstner solves this problem by formulating the herbicide in a composition having dynamic viscosity in the range of 500 to 10,000,000 (page 1), thus Gerstner recognizes that the rheological properties of the composition can be adjusted in order to provide better application and retention on the target plant without accidental contact on non-target plants. Gerstner teaches using a hydrogel (i.e. a polymeric gel forming agent in water) to achieve this, which may be polyacrylic acid etc. (page 2). Disclosed weed killers include the water-soluble herbicide, glyphosate (page 2).
Thus, Gerstner discloses an aqueous agrochemical gel composition comprising water-soluble agrochemical (glyphosate) in a composition containing a polymeric gel forming agent and water. Gerstner provides some example compositions but does not disclose overall ranges in amount of herbicide, gel forming polymer, and water and does not discuss tan delta or yield point of the gel.
Winston discloses that it is desirable to add a hydrophilic polymer to increase the amount of aqueous pesticide composition that adheres to plant surfaces because of the composition’s resulting static high apparent viscosity (i.e. stationary viscosity; col 7, lines 7-22). Winston accomplishes this by adding about 0.01 – 5% of a pseudoplastic thickener (col 5, lines 31-34). The pseudoplastic thickeners include gum arabic, gum karaya, gum tragacanth, guar gum, locust bean gum, xanthan gum, carrageenan, alginate salt, casein, dextran, pectin, agar, 2-hydroxyethyl starch, 2-aminoethyl starch, 2-hydroxyethyl cellulose, methyl cellulose, carboxymethyl cellulose salt, cellulose sulfate salt, polyacrylamide, methyl vinyl ether/maleic anhydride copolymer, styrene/maleic anhydride copolymer, ethylene/maleic anhydride copolymer, the corresponding alkali metal salts of the maleic anhydride copolymers, alkali metal salts of poly(meth)acrylate (col 5, lines 35-48). Winston describes these polymers as achieving the following:
A hydrophilic polymer type ingredient increases the amount of aqueous pesticide composition which adheres to the plant surfaces because of its static high apparent viscosity. During a spraying procedure, the hydrophilic polymer ingredient contributes a low pseudoplastic viscosity to the spray solution, which facilitates the spraying action. After spraying, the applied coating resists drifting under wind conditions, and exhibits humectant properties in addition to enhanced pesticidal activity.
That is, Winston discloses optimizing the rheological characteristics of agrochemical compositions by adding hydrogel-forming polymers in order to generate a pseudoplastic composition that is flowable during application to the plant (i.e. exhibits a yield point such that on agitation the composition becomes flowable), yet resists drifting under wind conditions after application (i.e. exhibits elastic behavior; col 7, lines 7-23).
Huchet indicates that gel compositions comprising similar gelling agents to those disclosed by Winston exhibit good adherence to vertical structures (and as such would also be likely to adhere to plant surfaces; i.e. Huchet solves the problem of adhering aqueous compositions to vertical surfaces by adding polymers) when the Brookfield yield point falls within 150 – 1000 (abstract, 0005, 0007).
Sakamoto discloses a conductive paste composition, and describes the properties of a viscoelastic gel as follows:
When the range in which the conductive paste can respond linearly, when the storage elastic modulus G′ is larger than the loss elastic modulus G″, the conductive paste becomes an elastic body and thus is hard to flow (0082). When the range in which the conductive paste can respond linearly, when the storage elastic modulus G′ is smaller than loss elastic modulus G″, the viscosity of the conductive paste (that is, viscous component of the viscosity) is too strong compared to the elasticity (that is, elastic component of the viscosity). For this reason, the conductive paste is very easy to flow, dripping in the printed coated film (0083).
Sakamoto describes a balance to avoid dripping of the composition yet exhibit sufficient flow in which G”/G’ (i.e. tan delta) falls within a range of from 0.4 to 1.2 (0085). The examiner notes that Sakamoto is in the field of conductive pastes rather than agrochemicals; however, Sakamoto describes solving the same problem as both Gerstner and the instant application, i.e. optimizing the rheological properties of a gel composition such that it adheres to a surface, without dripping.
In view of Winston, Huchet, and Sakamoto, one having ordinary skill would have recognized that both yield point and tan delta affect the flow, applicability, and adherence of a gel to a surface and can be optimized to minimize drip during application and maximize adhesion under static conditions.
Tadros discloses agrochemical gel compositions (abstract) containing an agrochemical, a polyacrylic acid polymer, and water in amounts sufficient to form a gel. Tadros discloses methodology for measuring the resulting gel’s storage modulus (G’) and loss modulus (G”), corresponding tan delta = G”/G’ and yield point (col 2, line 50 – col 3, line15). One having ordinary skill, e.g. an individual with a Ph.D. in formulations science, would have recognized from Tadros’s examples (col 4-10) and data in table 1 (col 11) that there is a relationship between amount of gelling polymer and the viscoelastic properties of the hydrogel and would have been aware of methods for measuring the parameters indicated as important for ease and accuracy of application by Winston, Huchet (yield point), and Sakamoto (tan delta).
It would have been prima facie obvious to optimize Gerstner’s hydrogel to have tan delta such that the composition is flowable enough to apply but does not drip, as described by Sakamoto. It also would have been prima facie obvious to optimize the yield point of the hydrogel to fall in a range that allows for good adhesion to surfaces. The skilled artisan would have had reasonable expectation of success because the prior art discloses starting points for these parameters (Winston, Huchet, and Sakamoto) and because Tadros describes known methodology to do so. See MPEP 2144.05 regarding optimization of ranges. With regard to the percentages of water-soluble herbicide, polymeric gel forming agent, and water, the examiner considers it a matter of routine for one of ordinary skill to determine the percentage of herbicide required to kill a target plant in a composition for direct application as disclosed by Gerstner. Similarly, it would have been obvious to optimize the relative proportions of gel former and water in the hydrogel to achieve the yield point and tan delta values indicated to be beneficial in the cited prior art.
With regard to the limitation of instant claim 1 requiring the presence of pelargonic acid, Gerstner discloses combining glyphosate with other active agents (e.g. page 2); however, the references discussed above do not disclose pelargonic acid.
Caulder et al., in the analogous art of sprayable agrochemical compositions, disclose that nonanoic acid (i.e. pelargonic acid, CAS Registry No. 112-05-0) exhibits synergistic weed control when used in combination with glyphosate (table 6, col 5). The skilled Artisan would have been motivated to use these two agents in combination in order to take advantage of their synergistic weed control and thus reduce the total amount of herbicide applied. Therefore, the invention as a whole was prima facie obvious.
With regard to claims 5 and 6, as noted above, Gerstner discloses polyacrylic acid. Moreover, one having ordinary skill would have been motivated to select polyacrylic acid because Tadros discloses detailed information on how this polymer provides viscoelastic properties to a hydrogel.
With regard to claim 8, as noted above, Winston discloses static viscosity to be another important parameter to optimize by including a gel forming polymer. It would have been obvious to optimize the static viscosity of Gerstner’s composition so that it would not drift under e.g. windy conditions. See MPEP 2144.05.
With regard to claim 13, Tadros discloses including a preservative in the composition (col 3, line 46). It would have been obvious to one of ordinary skill in the art to add a preservative to Gerstner’s composition in order to extend the shelf life.
With regard to claims 14 and 15, Tadros discloses adding surfactants, such as alkyl glucosides, to herbicide compositions to act as wetter or anti-freezing agents). It would have been prima facie obvious to one of ordinary skill to add a surfactant to Gerstner’s composition in order to impart these benefits.
Response to Arguments
Applicant's arguments filed 05/19/2026 have been fully considered but they are not persuasive.
On pages 11 and 12, Applicant points to the teachings of each reference and states that the cited references do not provide any motivation to arrive at the claimed compositions. Applicant asserts that the office simply refers to the individual teachings of the references and concludes that it would have been obvious to arrive at the claimed composition simply based on the individual teachings of the references that may involve properties defined in the claimed compositions.
This argument is not persuasive because it ignores the reasoning expressly described in the rejection. See above. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
On page 13, Applicant argues that the examiner has used impermissible hindsight to reconstruct the claims.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE PEEBLES whose telephone number is (571)272-6247. The examiner can normally be reached Monday through Friday: 9 am to 3 pm.
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/KATHERINE PEEBLES/ Primary Examiner, Art Unit 1617
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