DETAILED ACTION
Applicant’s arguments, filed 18 February 2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 18 February 2026 has been entered.
Claim Objections
Claim 1 is objected to because of the following informalities: “triethanolammonium” in component (B) should be recited as --- triethylammonium ---. Appropriate correction is required.
Claim 3 is objected to because of the following informalities: at the end of claim 3 there should a period. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 27 and 28 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 27 recites the limitation "the fluazifop alkyl ester" in lines 1-2 of the claim. There is insufficient antecedent basis for this limitation in the claim. Claim 3, from which it depends, recites fluazifop-P-butyl.
Claim 28 recites the limitation "the triclopyr ammonium salt" in lines 1-2 of the claim. There is insufficient antecedent basis for this limitation in the claim. Claim 3, from which it depends, recites triclopyr-triethylammonium.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-20 and 22-31 are rejected under 35 U.S.C. 103 as being unpatentable over Jimoh (US 6,369,001, 04/09/2002) in view of Witschel et al. (US 2021/0037824 A1, 02/11/2021) (hereinafter Witschel) further in view of Chetty et al. (US 2018/0153160 A1, 06/07/2018) (hereinafter Chetty), as evidence by Lock and Wilks (“Diquat”, 2001) (hereinafter Lock).
Jimoh discloses a liquid concentrate herbicidal microemulsion composition comprising water, a water-soluble herbicide, an oil-soluble cyclohexenone or aryloxyphenoxypropionate graminicide in a weight ratio to the water-soluble herbicide of about 1:50 to about 1:1, and a dispersing system comprising one or more nonionic surfactants in a total amount not exceeding about 5% by weight (abstract). Any nonionic surfactant known to be effective as a dispersant for emulsion formulations can be used in the composition (col. 11, lines 65-67). Graminicides, selective herbicides having strong herbicidal activity against many grass species, include fluazifop-p-butyl (col. 2, lines 4-16). Because the spectrum of herbicidal activity of graminicides is largely restricted to grasses, there is great complementarity in a package-mix of a graminicide with a second herbicide that has strong broadleaf herbicidal activity; many such herbicides are most conveniently formulated as water-soluble salts in aqueous solution. Examples include salts of triclopyr (col. 2, lines 18-25). Examples of water-soluble herbicides that can be used in the composition also include diquat (col. 9, lines 14-19). Compositions may contain more than one water-soluble herbicide (col. 9, lines 38-39). The composition contains at least about 5% by weight, and can contain up to about 50% by weight, of active ingredients in total of the water-soluble herbicide and the graminicide (col. 6, line 67 – col. 7, line 4). The concentration of the graminicide in the composition as a whole may be about 0.1% to about 25% by weight (col. 7, lines 11-13). Jimoh further discloses that a particularly preferred group of water-soluble herbicides are those that are normally applied post-emergence to the foliage of plants (i.e. foliar-applied) (col. 8, lines 62-64). For foliar-applied herbicides, the most important pathway is the phloem, and the composition may provide the greatest benefits where the water-soluble herbicide is phloem-mobile (col. 9, lines 7-11). Examples of phloem-mobile herbicides include imazapic (col. 9, lines 14-22).
As evidenced by Lock, the common name diquat is in general use but is formulated as the dibromide salt (p. 1605, § 71.1.3, lines 1-4). Thus the diquat of Jimoh meets the limitation of the diquat dihalide salt as claimed.
Jimoh differs from the instant claim insofar as not explicitly disclosing wherein the salts of triclopyr includes triclopyr-triethylammonium.
However, Witschel discloses herbicidal compositions comprising multiple herbicides ([0047]-[0048]), and at least one auxiliary including surfactants ([0238]) including nonionic surfactants to be used as emulsifier, dispersant, solubilizer, wetter, penetration enhancer, protective colloid, or adjuvant ([0241]). Witschel further discloses wherein suitable forms of diquat includes diquat-dibromide ([0072]); suitable salts of imazapic include imazapic-ammonium ([0101]); and an agriculturally suitable salt of triclopyr is triclopyr-triethylammonium ([0085]).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP § 2144.07. As discussed above, Jimoh discloses the herbicide may comprise salts of triclopyr. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated triclopyr-triethylammonium into the composition of Jimoh since it is a known and effective salt of triclopyr suitable for herbicidal compositions as taught by Witschel.
Jimoh and Witschel differs from the instant claim insofar as not explicitly disclosing an instantly claimed nonionic surfactant.
However, Chetty discloses an herbicidal emulsifiable concentrate to control weeds ([0001]). Emulsifiable concentrates contain active ingredient and emulsifying agents to enable easy dispersion in water ([0005]). The active ingredients include fluazifop ([0137]), triclopyr ([0143]), diquat ([0145]), and imazapic ([0128]). The emulsifying agent component preferably comprises nonionic surfactant component ([0058]). The one or more non-ionic surfactants includes EO/PO block copolymers including butyl based block copolymers ([0078]-[0079]). An exemplary butyl block copolymer is ToximulTM 8320 ([0265]).
Jimoh discloses wherein any nonionic surfactant known to be effective in aiding dispersion for emulsion formulation can be used in the composition. Accordingly, it would have been obvious to one of ordinary skill in the art to have included a butyl based block copolymer, such as ToximulTM 8320, since it is a known and effective nonionic surfactant suitable in herbicidal compositions comprising actives such as fluazifop, triclopyr, diquat, and/or imazapic as taught by Chetty.
As noted by para. [0056] of the instant Specification, Toximul® 8320 is a butyl polyalkylene oxide block copolymer, thus meeting the claim limitation of the one or more non-ionic surfactants as claimed.
Regarding claims 1 and 7 reciting ratios by weight of component (A) to component (B), the claimed ratio (i.e. from about 2:1 to about 1:3) would have been obvious to one of ordinary skill in the art since they overlap with the ranges of the prior art (i.e. about 1:50 to about 1:1). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP § 2144.05(I).
Regarding claims 1, 11-13 and 31 reciting amounts of component (A), (B), (C), and/or (D) as discussed above, Jimoh discloses about 5-50% weight of total active ingredients, about 0.1% to about 25% by weight graminicide, and both the salts of triclopyr ((B)) and diquat ((C)) as water-soluble herbicides. Accordingly, the claimed amounts of component (A) would have been obvious to one of ordinary skill in the art since it overlaps with the range of the prior art. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists. See MPEP § 2144.05(A). Moreover, in any case, the selection of appropriate weight percentages appear to require no more than routine testing on the part of the skilled artisan, and so alternatively it would have taken no more than the relative skills of one of ordinary skill in the art to have arrived at the claimed amounts of component (A), (B) and (C) since Jimoh discloses 5-50% wt. total actives, 0.1% to 25% wt. graminicide, and about 1:50 to 1:1 of graminicide to water soluble herbicides. "[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." See MPEP § 2144.05(II)(A).
Regarding claims 1 and 18 reciting amounts of non-ionic surfactant, the claimed ranges (i.e. about 0.15 wt.% to about 25 wt.%, or about 0.25 wt.% to about 20 wt.%, respectively) would have been obvious to one of ordinary skilled in the art since they overlap with the ranges of the prior art (i.e. about 5% by weight or less). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP § 2144.05(I).
Regarding claims 2-6 and 10, as discussed above, Witschel discloses suitable salts of imazapic including imazapic-ammonium.
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP § 2144.07. As discussed above, Jimoh discloses the herbicide may comprise imazapic. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated imazapic-ammonium into the composition of Jimoh since it is a known and effective imazapic herbicide compound for compositions comprising herbicides as taught by Witschel.
Regarding claims 4 and 10 reciting wherein components (A), (B), (C), and/or (D) are the only herbicidal active ingredients in the composition, Jimoh does not disclose wherein the composition is required to have four or more herbicides in combination. Therefore, it would have been obvious to one of ordinary skill in the art to have the composition of Jimoh wherein fluazifop, salt of triclopyr, and diquat (i.e. diquat dibromide), and/or imazapic are the only herbicidal active ingredients of the composition.
Similarly, claim 30 is rejected based on the reasonings set forth above in rejecting claim 4 regarding only herbicidal active ingredients in the composition.
Regarding claim 8, as discussed above, Jimoh discloses wherein the composition comprises graminicide, such as fluazifop-p-butyl ((A)), in a weight ratio to the water-soluble herbicide, including diquat ((C)), of about 1:50 to about 1:1.
Accordingly, the claimed ratios of component (A) to component (C) (i.e. from about 2:1 to about 1:2) would have been obvious to one of ordinary skill in the art since they overlap with the ranges of the prior art (i.e. about 1:50 to about 1:1). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP § 2144.05(I).
Regarding claim 9, as discussed above, Jimoh discloses wherein the composition comprises graminicide, such as fluazifop-p-butyl ((A)), in a weight ratio to the water-soluble herbicide, including imazapic ((D)), of about 1:50 to about 1:1.
Accordingly, the claimed ratios of component (A) to component (D) (i.e. from about 10:1 to about 1:2) would have been obvious to one of ordinary skill in the art since they overlap with the ranges of the prior art (i.e. about 1:50 to about 1:1). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP § 2144.05(I).
Regarding claim 14, as discussed above, Jimoh discloses wherein the composition comprises water. Jimoh further discloses wherein the composition comprises one or more surfactants functioning as emulsifying agents, dispersing agents and/or adjuvants for herbicidal efficacy enhancement (col. 9, lines 63-66).
Regarding claim 15, Jimoh further discloses wherein the composition comprises a substantially water-immiscible organic solvent (i.e. claimed one or more constituent) (abstract).
Regarding claim 17, as discussed above, Jimoh discloses wherein the dispersing system provides acceptable dispersion of the microemulsion upon dilution thereof in a suitable volume of water for application to plants. Jimoh further discloses wherein a “suitable volume of water” can readily be determined by one of skill in the art by routine evaluation of a range of compositions having differing amounts of the selected dispersing system and is an amount which upon dilution of the composition provides an application composition having a concentration of active ingredients adequate to kill or control susceptible plants if applied to foliage of such plants (col. 6, lines 34-43).
Accordingly, even though Jimoh does not explicitly disclose the amount of water, it would have taken no more than the relative skill of one of ordinary skill in the art to have arrived at the claimed amounts of water (i.e. about 60 wt.% to about 99.5 wt.%) through routine experimentation based on the concentration of active ingredients adequate to kill or control susceptible plants if applied to foliage of such plants. "[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." See MPEP § 2144.05(II)(A).
Regarding claim 19, as discussed above, Jimoh discloses a liquid concentrate herbicidal composition. Thus, it is obvious that the composition is an aqueous liquid herbicidal composition at room temperature (i.e. 25 °C) and at standard air pressure (i.e. 1013 mbar).
Regarding claims 20 and 23, as discussed above, Jimoh discloses applying the herbicidal composition to plants (i.e. unwanted plants). Since Jimoh also discloses wherein the composition comprises water-soluble herbicides that are applied post-emergence to the foliage of plants, the application of such composition to the foliage of plants (i.e. claimed plant part) post-emergence would have been obvious as well.
Regarding claim 22 reciting unwanted plants in the field of environmental health, since Jimoh discloses applying to a field of foliage (i.e. claimed environment in line 8 of the claim), the disclosure of Jimoh meets the limitation of applying to unwanted plants in the field of environmental health as claimed.
Regarding claims 24 and 25, Jimoh further discloses wherein suitable application rates vary depending upon such factors as the type and concentration of active ingredient and the plant species involved. Useful rates for applying an aqueous composition to a field of foliage may range from about 25 to about 1000 liters per hectare (l/ha) (col. 15, lines 57-62).
Jimoh differs from the instant claim insofar as not explicitly disclosing application rates in g/ha.
However, it should be noted that the instant claim requires only one of the recited amounts to meet the claim limitations as interpreted under the broadest reasonable interpretation with the recitation of “and/or” in the penultimate line.
Accordingly, given Jimoh’s general guidance on amounts of water-soluble herbicides and graminicides, it would have taken no more than the relative skills of one of ordinary skill in the art to have arrived at the claimed application rate (i.e. from about 1000 to about 2500 g/ha) through routine experimentation based on the concentration of active ingredient and plant species involved. "[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." See MPEP § 2144.05(II)(A).
Regarding claim 25, Jimoh further discloses wherein the composition contains at least about 5% by weight, and can contain up to about 50% by weight, of active ingredients in total of the water-soluble herbicide and the graminicide (col. 6, line 67 – col. 7, line 4). The concentration of the graminicide in the composition as a whole may be about 0.1% to about 25% by weight (col. 7, lines 11-13).
Regarding claim 26, Jimoh further discloses wherein a process of preparing the composition comprises mixing the various ingredients in a suitable vessel (col. 13, lines 40-42).
Regarding the order of mixing claimed, since Jimoh does disclose mixing the various ingredients, Jimoh discloses wherein a graminicide, such as fluazifop-P-butyl (i.e. claimed (A)), and water-soluble herbicides, such as salt of triclopyr (i.e. claimed (B)) and diquat (i.e. diquat dibromide) (i.e. claimed (C)) are mixed and the claimed steps of mixing would have been prima facie obvious to one of ordinary skill in the art since the selection of any order of mixing ingredients is prima facie obvious. See MPEP § 2144.04(IV)(C).
Response to Arguments
Applicant mainly reiterates the arguments on pages 11-13 of Applicant’s Amendment submitted October 7, 2025, and pp. 10-11 of the Remarks of 02/18/2026, that the cited references do not disclose compositions suitable alternative to glyphosate and dicamba containing products like the claimed invention.
The Examiner has considered the assertions and have responded on pp. 8-11 of Office action of 11/25/2025. Furthermore, it is noted that It is not necessary for the prior art to suggest the combination to achieve the same advantage or result discovered by Applicant. See MPEP 2144(IV). As such, Applicant’s argument is unpersuasive.
Applicant mainly asserts on pp. 11-14 that Jimoh does not include any specific teaching or direction regarding combining components (A) and (B) as claimed. None of the working examples of Jimoh describe combinations of herbicides relevant to the combination of components (A), (B), and (C). Moreover, Chetty does not cure the deficiencies of Jimoh. Only through impermissible hindsight could one skilled in the art consider adapting the teachings of Chetty regarding non-ionic surfactants to herbicidal compositions combining (A), (B), and (C) and instantly claimed. Finally, Witschel does not cure the deficiencies of Jimoh, Chetty, and Lock with respect to components (A), (B), and (C) as now defined and with respect to their concentrations, ratios, etc.
The Examiner does not find Applicant’s assertions to be persuasive. In regards to concentration and ratios, such assertions have been discussed in the 103 obviousness rejection above, as well as on p. 9 of the previous Office action dated 11/25/2025.
In response to Applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Jimoh explicitly discloses instantly claimed component (C), as well as triclopyr as suitable herbicidal actives that work complementarily with instantly claimed component (A), and that non-ionic surfactants are suitable in combination with such actives. Chetty discloses suitable species of non-ionic surfactants suitable for herbicidal compositions. Witschel discloses suitable salts of triclopyr (i.e. instantly claimed component (B)) and/or diquat (i.e. instantly claimed component (C)). Accordingly, as supported by MPEP 2144.06, it is obvious to combine known compositions each of which is taught by the prior art to be useful for the same purpose (in this instant case as a herbicide), in order to form a third composition to be used for the very same purpose.
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). In this instant case, as supported by MPEP 2144.07, generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. Jimoh demonstrates that claimed herbicides are known and can be combined with a non-ionic surfactant known to be effective in aiding dispersion for emulsion formulation can be used in the composition. Chetty discloses herbicidal compositions comprising active ingredients, including the same herbicides as instantly claimed, and emulsifying agents to enable easy dispersion, and that the emulsifying agents preferably contain non-ionic surfactants including butyl-based block copolymers, an exemplary butyl block copolymer being ToximulTM 8320. Thus Chetty provides the motivation to have included a non-ionic surfactant as instantly claimed.
Examiner’s Comment
The Examiner appreciates Applicant’s amendments, and further notes a combination of claims 4 and 29 appears to encompass subject matter most closely reflecting the inventive concept of an herbicidal composition suitable as an effective replacement to compositions comprising glyphosate or dicamba, while not comprising glyphosate or dicamba. Specifically, upon reconsideration, the combination of the limitations of claim 4 (i.e. reciting wherein components (A), (B), and (C) are the only herbicidal actives in the composition), and claim 29 (i.e. reciting specific species of degrees of ethoxylation of castor oil and specific species of C8-18 alkyl alcohol polyethoxylates) appear to reflect the inventive compositions of Tables 1-4, comprising only the currently recited specific active salts and specific sub-species of the one or more non-ionic surfactants employed (see, for example, para. [0195] of the instant Specification, noting where Agnique® CSO-25=Emulsifier ethoxylated castor oil, POE 25; Agnique® CSO-30=Emulsifier ethoxylated castor oil, POE 30; Makon® DA-6=Surfactant isodecyl alcohol ethoxylate, POE-6 (CAS Reg. No. 61827-42-7); and Toximul® 8320=Surfactant butyl polyalkylene oxide block copolymer (CAS Reg. No. 9038-95-3). See MPEP 716.02(d)(I), citing In re Kollman with similar fact patterns regarding combination of herbicides; and In re Lindner, explaining that when there was “no adequate basis for reasonably concluding that the great number and variety of compositions included in the claims would behave in the same manner as the tested composition”, the evidence would not be sufficient to rebut the prima facie case of obviousness.
In further consideration of the subject matter encompassed by claims 2, 5-6, and 10, in view of the subject matter encompassed by the combination of claims 4 and 29, the Examiner would suggest possible alternative claim language such as --- wherein components (A), (B), (C), and optionally component (D) are the only herbicidal active ingredients present in the composition, and wherein Component (A) consists of fluazifop-P-butyl; Component (B) consists of triclopyr-triethylammonium; Component (C) consists of diquat dibromide; and Component (D) consists of imazapic-ammonium --- if the subject matter of claims 4 and 29 were to be combined. Such alternative claim language would appear to encompass subject matter most closely reflecting the inventive concept involving component (D).
Conclusion
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/LUCY M TIEN/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612