DETAILED ACTION
Status of the Claims
Pursuant to the amendment dated 01/14/2026, claims 16-22 and 25 have been cancelled. Claims 3, 4, 23, 24, 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 Claims 27-30 and 33 stand withdrawn without traverse.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.
All rejections not reiterated have been withdrawn.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 01/14/2026 have been fully considered but they are not persuasive.
On pages 10-111Applicant 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).
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, 2, 5-15, and 26 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-31 of U.S. Patent No. 11419329.
Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claims anticipate the instant claims.
The claims of the ‘329 patent embrace an aqueous agrochemical gel composition comprising: (1) from 0.1 to 5 percent by weight on an acid equivalent basis, relative to the total composition, of a water-soluble agrochemical component comprising glyphosate in the form of a salt thereof, (2) from 1 to 5 percent by weight, relative to the total composition, of a polymeric gel forming agent component comprising at least one polymeric gel forming agent selected from the group consisting of polyacrylic acids and salts, derivatives, and copolymers thereof, and (3) from 90 to 98 percent by weight, relative to the total composition, of water; wherein tan(delta) of the gel composition is less than 0.7 as measured by oscillation frequency sweep rheometric measurements between about 0.1 and about 600 rad/sec at 0.2 Pa and 1 Pa as measured using a cone and plate viscometer method with a 60 mm 2° acrylic cone and plate at 20° C., and wherein the yield point of the gel composition is at least about 50 dyne/cm2. The composition may contain a surfactant, wherein the surfactant component comprises at least one surfactant selected from the group consisting of alkoxylated tertiary etheramine, alkoxylated quaternary etheramine, alkoxylated tertiary amine oxide, alkoxylated tertiary amine, alkoxylated quaternary amine, alkoxylated etheramine oxide, polyamine, sulfate derivative, sulfonate derivative, phosphate ester of alkoxylated alcohol, alkyl polysaccharide, alkoxylated alcohol, amidoalkylamine, and combinations thereof. The composition may comprise an additional water soluble herbicide selected from 2,4-D, dicamba, MCPA, MCPB, triclopyr, imazamethabenz-m, imazamox, imazapic, imazapyr, imazaquin, imazethapyr, paraquat, diquat, and salts and esters thereof and/or a water insoluble herbicide selected from dithiopyr, pyraflufen-ethyl, acifluorfen, aclonifen, bifenox, chlomethoxyfen, chlornitrofen, etnipromid, fluorodifen, fluoroglycofen, fluoronitrofen, fomesafen, furyloxyfen, halosafen, lactofen, nitrofen, nitrofluorfen, oxyfluorfen and atrazine.
Response to Arguments
Applicant's arguments filed 01/14/2026 have been fully considered but they are not persuasive. Applicant’s comment that they will consider submitting a terminal disclaimer if/when this double patenting rejection is the lone remaining rejection in the subject application is noted.
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 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