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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 06/11/2026 has been entered.
Status of Claims
Amendment filed on 06/11/2026 is acknowledged.
Claims 11-15, 17, 20, 22-24, 26-30 remain cancelled. Claim 9 is now cancelled.
Claims 1-2, 4-6, and 8 are amended.
Claims 1-8, 10, 16, 18, 19, 21, and 25 are pending and being examined on the merits herein.
Priority
This instant application 17907219, filed on 09/23/2022, is a 371 of PCT/GB2021/050727, filed on 03/25/2021, claims foreign priority to UK 2004292.5, filed on 03/25/2020.
Claim Objections
Claim 5 is objected to because of the following informalities:
Claim 5 recites scientific names “stevia rebaudiana” and “siraitia grosvenori”, of which the first letter should be uppercase, and the words need to be italicized.
Appropriate correction is required.
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 1-6, 8, 10, 16, 18, 21, and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Cobb (US20190082698, 03/21/2019, IDS of 09/23/2022), in view of Engel et al. (WO9605183, 02/22/1996, translation relied upon below; attached, PTO-892), Machado et al. (US20190150430, 05/23/2019) and Parrish (US20150045224, 02/12/2015).
For claims 1-3, Cobb throughout the reference directs to herbicide compositions and methods of inducing phytotoxicity in a plant, by administering an aqueous herbicidal composition to foliar portions of the plant (e.g., Abstract), which corresponds to the method for controlling growth of vegetation.
Cobb teaches that the aqueous herbicidal composition includes at least one nutrient, at least one adjuvant, and has a pH of about 4 to about 7, thereby administering an excess of the nutrient to the plant and the nutrient is absorbed by the plant in excess, thereby inducing phytotoxicity in the plant (Pg. 38, Claim 1), wherein the adjuvant comprises a surfactant, a humectant, or both (Claim 17), wherein the humectant comprises a sugar selected from the group consisting of dextrose, fructose, sucrose, or a combination of any of these (Claim 18), known as plant-based natural sugars in the field (corresponding to instant claims 2-3). Cobb specifies that the ingredients can be dissolved and /or diluted in aqueous solvent, such as water [0046], or can be dissolved in aqueous solution comprising an organic acid at a concentration that achieves an acidity suitable for foliar absorption [0048], with no specification about involvement of heating or raising temperature step. Cobb exemplifies trials of applying the adjuvant containing phytotoxic solutions by spraying to the plants in greenhouse, with no pre-heating step involved ( [0088], [0091], Examples 1-7).
Cobb teaches that the herbicide composition can comprise as a non-active ingredient at least one penetrant, at least one adjuvant (for example, comprising, consisting of, or consisting essentially of a surfactant and/or humectant), or additional adjuvants to improve the effectiveness of the herbicide [0038]. Cobb specifies that suitable adjuvants for herbicides and methods include, but not limited to, crop oil (soybean is a crop as known in field) concentrate, emulsifiers, penetrants (e.g., emulsified methylated seed oil), and surfactants such as alkyl esters, phosphate alcohol ethoxylate, natural primary alcohol (C12-16) ethoxylate, tridecyl alcohol ethoxylate (corresponding to alkoxylated alcohols), vegetable or seed oils and their esters (e.g., [0079], among these, soybean oil and its esters would fit as suitable adjuvants for herbicides since soybean is well known as seed crop for oil products. MPEP 2144.01 points out "[I]n considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom." In re Preda, 401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968).
Regarding the penetrant amounts, Cobb sets forth options in addition to the fatty acid in the herbicide composition, comprising at least one nutrient and one adjuvant [0100-0103], and Cobb further sets forth an option for this herbicide composition can be a non-nutrient herbicide [0138], wherein leaves the composition comprising at least one adjuvant in addition to the fatty acid, resulting in possible adjuvant maximum amounts as 43%, 53%, and 68% (calculated as 100% composition minus individual acid amount).
The phrases of “to induce osmosis on cells of the foliage and destroy those cells”, “to promote the osmotic action of the solution”, or “penetrating and translocating” in instant claim 1 are interpreted as “intended use” properties of the method/components. The phrases do not constitute structural limitations on the method/components, they are inherent properties of the components or composition in the method. As such, prior art teaches the sugar-comprising herbicidal composition constituting phytotoxicity is to induce osmosis on cells of the foliage and destroy those cells, and a penetrant is to promote the osmotic action of the solution, and wetting agent (humectant) and adjuvant are penetrating and translocating in the composition.
Therefore, Cobb teaches a method for controlling the growth of vegetation, comprising applying to the foliage of the vegetation, an aqueous solution comprising sugar and a penetrant comprising humectant (wetting agent), surfactant, and adjuvant (e.g., seed oil and its ester, ethoxylated alcohol), at ambient temperature without any pre-heating, to induce osmosis on cells of the foliage and destroy those cells as instantly claimed, wherein adjuvant can be in the amount of 43%-68% of the composition.
Regarding instant claim 6, Cobb indicates that suitable humectants can be included in the composition, including, but are not limited to sugars such as plant-based natural sugar (e.g., glucose, fructose, sucrose) and sugar alcohols, glycerin, glycerol, sodium hexametaphosphate, a variety of other commercially available products, as well as combinations of two or more of any of the listed items (e.g., [0078]. Cobb specifies that the adjuvant mixture may include a “humectant”, a category of substances employed to keep surfaces moist and thus extend the semi-liquid state necessary for absorption of the active ingredient through the plant surfaces, and suitable examples including glycerol, sugar, honey, sugar alcohols, and polyethylene glycol can be included in the composition [0049].
Regarding instant claim 10, Cobb indicates that the humectant, for example a sugar, is present in the composition at a concentration of at least about 0.1M, for example at least about 0.1M, 0.5M, 1M, 1.5M, 2M, 2.5M, 3M, 3.5M, 4M, 4.5M, or 5M, including ranges between any two of the listed values, for example about 0.1M 5M, 0.1M 4M, 0.1M 3M, 0.1M 2M, 0.5M 5M, 0.5M 4M, 0.5M-3M, 0.5M-2M, 1M-5M, 1M-4M, 1M-3M, 1M 2M, 1.5M-5M, 1.5M-4M, 1.5M 3M, or 1.5M 2M [0079]. When the maximum possible range 0.1M-5M as shown above is taken into calculation for sucrose (MW=342.3 g/mol) as an example, the corresponding sugar concentration range is between 34.23 to 1711.5 g/L based upon 342.3* (0.1 to 5); for fructose (MW=180.156 g/mol) the range is 18.01 to 900.78 g/L. In both instances, the ranges overlap with the range from 50 to 133 g/l in instant claim 10.
Regarding instant claim 16, Cobb exemplifies penetrants as emulsified methylated seed oil (MSO) or LI700 (Loveland Products) [0079]. The adjuvants including penetrants added into acid solution to achieve specific pH for various composition solutions [0013], specifics for the plant toxicity trails are shown with adjuvant including penetrant (e.g., MSO, LI700) volumes (or weighs) corresponding to the acid added volumes as 0 (Trial#, Sample #: T41-B, S2), 24-29.5 g/L (Trial#, Sample #: T31-B, S1 to S3), 29.5-50 g/L (Trial#, Sample#: T32-B, S1 to S3), and 64ml/L (Trial #, Sample #: T15, S3) (Pg. 25-29, Table 6B). These penetrant solution volumes will be 0%, 2.4-2.95%, 2.95-5%, and 6.4% (calculated based on water solution density as 1g/ml) (Overlapping with the amount range from 0.15% to 0.55 in instant claim 16).
Regarding instant claims 18 and 21, Cobb also indicates that the composition comprises organic acid, and the organic acid is selected from the group consisting of acetic acid, citric acid, lactic acid, formic acid, succinic acid, tartaric acid, malic acid, and oxalic acid (Claim 9), or from caprylic (octanoic) acid and capric (decanoic) acid, or pelargonic (nonanoic) acid and fatty acids, or ammonium nonanoate, and an ammonium salt of pelargonic acid (Claim 16).
Regarding instant claim 25, Cobb specifies that the composition and method include a class of post-emergence, non-selective herbicide to be applied "topically" as a water-based spray of inducing phytotoxicity, systemic or topical (e.g. as a desiccant) [0025], and the herbicide can comprise a macro-nutrient and/or micro-nutrient in phytotoxic concentrations for the target plant(s), and can be formulated for a pH and viscosity suitable for the target plant to systemically absorb quantities of the macro-nutrient and/or micro-nutrient in physiological excess, including absorption in the roots [0025]. Cobb teaches that the composition is sprayed upon the surface tissue of the targeted weeds in an amount sufficient to thoroughly coat the exposed surfaces of the target plants such as weeds, which spray was conducted in the field [0095]. That is the spraying was under natural or ambient temperature as recited in claim 25. Without being limited by theory, it is contemplated that thoroughly coating the target plant with the liquid herbicide composition of some embodiments can facilitate absorption of the nutrients in excess, thus yielding efficient killing. A repeat application can be applied within about fourteen days if weed kill is insufficient for horticultural purposes [0094]. Therefore, the spraying method taught by Cobb indicates a sufficient rate of spraying to not only thoroughly coating or wetting the target plants such as weeds with the liquid, but also repetitive spray can be applied for killing the target weeds.
Cobb does not teach the sugar component comprising sodium saccharin as recited in instant claims 1 and 8, and Cobb does not explicitly teach the penetrant comprising an emulsifiable concentrate formulation containing 50.0% w/w soybean phospholipid, 25.0% alkoxylated alcohols and 25.0% w/w oil comprising soybean fatty acid esters as recited in instant claim 1. Cobb does not teach the other sugar component in the method comprising at least one other sugar substitute (instant claim 4) selected from the group consisting of saccharin, stevia rebaudiana, siraitia grosvenori, aspartame, acesulfame potassium, sucralose, neotame, and advantame as recited in instant claim 5.
Engel throughout the reference teaches saccharine derivatives including salts thereof and their uses as herbicides in agriculture (e.g., Claim 1; Abstract), in aqueous application forms prepared from emulsion concentrates, suspensions, and other forms, consisting of active substance, wetting agent, dispersing or emulsifying agent, possibly solvent or oil with water (e.g., [0074]), and surfactants including fatty alcohol ethylene oxide condensates (relates to alkoxylated alcohols), ethoxylated castor oil, sorbitol esters, fatty alcohol sulfates, etc. (e.g., [0075]).
Engel teaches that saccharine derivatives and salts thereof relate to herbicidal agents having herbicidal effects for combating unwanted plant growth (e.g., [0009]), which is a novel function in addition to the well known functions as sweetener (as other sugar substitute) and pest control agents (e.g., [0010]). Engel specifies that the saccharin compounds (corresponding to instant claims 4-5) can be in the form of their agriculturally useful salts, whereby the type of salt generally not important (e.g., [0065]), suitable basic salts include those of the alkali metals, preferably the sodium and potassium salts, those of the alkali earth metals, preferably calcium, magnesium, and barium salts, etc. (e.g., [0066]), suggesting sodium saccharin is the preferable and suitable herbicidal agent, corresponding to sodium saccharin in instant claims 1 and 8.
Machado throughout the reference teaches a fungicidal oil liquid formulation comprising fungicide or herbicide and an agrochemically acceptable non-aqueous liquid carrier, wherein the liquid carrier optionally comprises an adjuvant (e.g., Abstract; [0025]; [0080]).
Machado teaches oil dispersion formulations in a concentrate which is diluted with water to produce an aqueous composition which is used in crop protection [0006]. In order to enable dispersion in water, such formulation contain emulsifies, dispersants, thickeners, antifoaming agents, solid carrier [0006], and oil-based adjuvants in order to enhance efficacy [0007]. Machado defines broadly “adjuvant” as any substance that enhances or is intended to enhance the effectiveness of the active agent, e.g., fungicide or herbicide, including sticking agents, spreading agents, surfactants, synergists, penetrants, compatibility agents, buffers, acidifies, defoaming agents, thickeners and drift retardants [0037]. Thus, Machado teaches the penetrant comprising an emulsifiable concentrate formulation.
Machado teaches alkoxylated alcohols can be used as surfactant and adjuvant in the oil liquid concentrate (e.g. [0065]; claim 12; claim 26), and surfactant can present in the formulation in an amount of about 0.1-40%, or about 24%, about 10-40%, or 15-25%, and other variable amount ranges in the composition (e.g., [0067]), overlapping with 25% alkoxylated alcohols amount in the claimed formulation.
Machado specifies that the adjuvant is at least one of methyl ester of soybean oil (e.g., claim 5; claim 18) (as a specific type of soybean fatty acid ester), and adjuvant in the oil concentrate formulation is present at least 10% up to about 35% (e.g., [0064]), overlapping with soybean fatty acid ester amount 25% in instant claim 1.
Parrish throughout the reference teaches agricultural chemicals and compositions for the purpose of improving efficacy and reducing drift of sprayed chemicals from target areas, with disclosed processes for preparing combination water conditioning adjuvant and drift reduction compositions as well as methods of drift reduction utilizing such compositions (e.g., Abstract).
Parrish teaches that adding water conditioning agents to increase herbicide efficacy and using phospholipids as drift reduction agents (e.g., [0005]). Parrish indicates polyoxyethylene ether (an ethoxylated alcohol), alcohol ethoxylates, sugar ether, sucrose ester, fatty acid polyglycol esters (e.g., claim 14; claim 63; claim 68; claim 73; [0053]), seed oil (e.g., claim 50), phospholipid (e.g., claims 20; claim 22) can be used in the composition. Parrish specifies that phospholipid drift reduction agent includes liquid lecithins such as soybean based lecithins (e.g., [0048]; claim 25) and the phospholipid component can be used in the composition in an amount between about 10% and about 60%, or about 50%, or less than or equal to 50%, and many other variable optional amounts (e.g., [0049]) (overlapping or equal to soybean phospholipid amount 50% as in instant claim 1).
It would have been prima facie obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to take the opportunity to select and combine known components, e.g., sugar types, sodium saccharin, saccharin, fatty acid, penetrants taught by Cobb, Engel, Machado, and Parrish to arrive at current invention. Because Cobb uses sugar component in the herbicidal composition, while Engel teaches saccharin salts, e.g., sodium saccharin, not only functions as sugar sweetener, but also functions as novel herbicides, it would have motivated artisans to implement sodium saccharin into the herbicidal composition for controlling the growth of vegetation for reasonable expectation of success. Since Cobb teaches that alcohol ethoxylate, soybean oil and its esters would fit as suitable adjuvants for herbicides since soybean is well known as seed crop for oil products in the composition, while Machado teaches alkoxylated alcohols along with methyl ester of soybean oil at specified amounts as adjuvants, and Parrish teaches soybean phospholipid as adjuvant in the emulsifiable concentrate formulation, by combining the teachings of prior art and selecting these known components, artisans in the field would have reasonable expectations of success for improving efficacy in induction of phytotoxicity and osmosis of the foliage and destroy those cells through reduction in drifting and enhancing penetration. This renders obviousness as “use of known technique to improve similar devices (methods, or products) in the same way” or as “applying a known technique to a known device (method, or product) ready for improvement to yield predictable results”. See MPEP §2143. (I)(C) and (I)(D). Furthermore, It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
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. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). For this instance, the amounts of soybean phospholipid, alkoxylated alcohol, soybean fatty acid esters, sugar component, and penetrant amounts overlap with those taught by prior art. Furthermore, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
Claims 7 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Cobb (US20190082698, 03/21/2019, IDS of 09/23/2022), in view of Engel et al. (WO9605183, 02/22/1996, translation relied upon below; attached, PTO-892), Machado et al. (US20190150430, 05/23/2019) and Parrish (US20150045224, 02/12/2015), as applied to claims 1-6, 8, 10, 16, 18, 21, and 25 above, and further in view of Lange et al. (WO2006087227, 08/24/2006, translation relied upon below; attached, PTO-892).
Cobb, Engel, Machado and Parrish combined teaching teaches the herbicide composition and method to induce phytotoxicity and osmosis on cells of the foliage to control the growth of vegetation by spraying the aqueous composition, comprising sodium saccharin, at least one adjuvant, e.g., sugar, plant-based natural sugar like sucrose and fructose, sugar substitute like saccharin, honey, or sugar alcohol, with additional components including citric acid or fatty acid (e.g., pelargonic acid, acetic acid, and caprylic acid), a penetrant comprising agents, e.g., humectant, surfactant, and adjuvant, comprising an emulsifiable concentrate formulation that can contain soybean phospholipid, alkoxylated alcohols, and soybean fatty acid esters in specific amounts, as applied above in greater detail to claims 1-6, 8, 10, 16, 18, 21, and 25 above, and incorporated herein.
Cobb, Engel, Machado and Parrish does not teach in the composition the specific species of sugar alcohol selected from the group consisting of sorbitol, xylitol, lactitol, mannitol, erythritol, and maltitol as recited in instant claim 7, or one essential oil selected from pine oil, manuka oil, and tea tree oil in the composition as recited in instant claim 19.
Lange throughout the reference teaches formulations that contains at least one nitrogen-containing hyperbranched polymer and an active or effective substance (e.g., Claim 1; Abstract) such as pesticides, herbicides, fungicides or insecticides, especially preparations of plant protection products that are used as sprays or pouring solutions with suitable herbicides as exemplified (e.g., [0184]; [0390]; [0205-0236]).
Lange teaches that suitable ingredients for the composition include, sugar alcohols and their derivatives such as erythritol, pentaerythritol, dipenterythritol, threitol, inositol and sorbitol [0102] (corresponding to sugar alcohol species in instant claim 7), polymerized fatty acid derivatives and fatty alcohol derivatives as solubilizers [0015], sugar surfactants, sorbitol esters [0406], phospholipids such as lecithin surfactants [0409], soybean oil, coconut oil, peanut oil, basil oil [0420], pine oil (corresponding to one essential oil in instant claim 19), mandarin oil, hydrogenated soybean oil, palm oil, rapeseed oil, etc. [0421], acetic acid, citric acid (corresponding to instant claims 18 and 21).
It would have been prima facie obvious for one of ordinary skill in the art prior to the effective filing date of the claimed invention to take the opportunity to select known sugar alcohol species and specific oil taught by Lange and incorporate them into the herbicide composition and method taught by Cobb, Engel, Machado and Parrish to arrive at current invention to achieve vegetation control. Because Cobb teaches that sugar alcohol with sugar and oil are suitable for the phytotoxicity composition as vegetation control topical method, while Lange’s composition and method can contain sorbitol and pine oil for herbicide preparation, one of ordinary skill in the art would have a reasonable expectation of success resulting from implementing sorbitol as sugar alcohol with essential oil such as pine oil in the composition. It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
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 1-8, 10, 16, 18, 19, 21, and 25 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1-2, 4-9, 13-16, 18-20, and 23-27 of copending Application No. 19224532 (hereafter App’532) in view of Cobb (US20190082698, 03/21/2019, IDS of 09/23/2022), Machado et al. (US20190150430, 05/23/2019) and Parrish (US20150045224, 02/12/2015), and Lange et al. (WO2006087227, 08/24/2006, translation relied upon below; attached, PTO-892).
App’532 recites an aqueous solution formulation (Claim 13) comprising at least one sugar or sugar substitute, such as, natural sugar, sugar substitute, and/or a sugar alcohol (Claim 7), including sucrose, glucose, fructose, xylose (Claim 4), saccharin, Stevia rebaudiana, Siraitia grosvenori, aspartame, acesulfame, sucralose, neotame, advantame, salts thereof and combinations thereof (Claim 5), sugar alcohol (Claim 6), saccharin or a salt thereof (Claim 8), sodium saccharin (Claim 15) and other exemplified saccharin salts (Claim 9), and at least one spreader adjuvant and a method for preparing the formulation (e.g., Claims 1-2) and applying the formulation to vegetation (Claim 19) for killing weed (Claim 20), and further comprising a penetrant, emulsifier or other ingredients as recited in Claim 18, wherein the sugar component has a concentration in the range of about 1-400 g/L (Claim 14, overlapping to range from 50 to 133 g/L in instant claim 10), the spreader adjuvant in an amount of about 0.25-0.6% of the aqueous solution (Claim 16, corresponding to range 0.15-0.5% in instant claim 16).
App’532 does not recite the composition for the vegetation growth controlling method comprising a penetrant containing an emulsifiable concentrate formulation with 50.0% soybean phospholipid, 25.0% alkoxylated alcohols and 25.0% oil comprising soybean fatty acid esters as recited in instant claim 1, or comprising sugar alcohol species as sorbitol, xylitol, lactitol, mannitol, erythritol and maltitol as recited in instant claim 7, or an additional component as fatty acid, citric acid, and essential oil as recited in instant claim 18, essential oil as pine oil, manuka oil and tea tree oil as recited in instant claim 19, fatty acid as pelargonic acid, acetic acid and caprylic acid as recited in instant claim 21.
As presented above and incorporated herein, Cobb, Engel, Machado, Parrish and Lange combined teaching teaches the herbicide composition and method to control the growth of vegetation by spraying the aqueous herbicide composition, comprising sodium saccharin, at least one adjuvant, e.g., sugar, plant-based natural sugar like sucrose and fructose, sugar substitute like saccharin, honey, or sugar alcohol such as sorbitol and erythritol, with additional components including citric acid or fatty acid (e.g., pelargonic acid, acetic acid, and caprylic acid), a penetrant comprising agents, e.g., humectant, surfactant, and adjuvant, comprising an emulsifiable concentrate formulation that can contain soybean phospholipid, alkoxylated alcohols, and soybean fatty acid esters in specific amounts, essential oil like pine oil.
It would have been convenient for an artisan in the field to incorporate the teaching from Cobb, Engel, Machado, Parrish and Lange to select suitable ingredients into the formulation of App’532 to arrive current invention. Because App’532 and the prior art references share common ingredients such as sugar components including natural sugar, sugar alcohol, and other sugar substitute, and sodium saccharin, and for the same intended use, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
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. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). The ingredient amounts overlap with those taught by prior art as presented above. Furthermore, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
This is a provisional nonstatutory double patenting rejection.
Response to Arguments
Applicant’s arguments filed on 06/11/2026 have been fully considered.
Applicant asserts that Cobb in view of Machado, Parrish or Atushi does not teach sodium saccharin.
In light of claim amendments reciting “sodium saccharin” in instant claims, the office action has taken new ground of art rejections with prior art Cobb, Engel, Machado, Parrish and Lange as presented above in this office action. Please take the entire office action as a response related to any arguments related to “sodium saccharin”.
Applicant asserts that Cobb would not be considered as effective commercial outcome as a herbicide, and Machado constitutes fungicidal treatment instead of herbicidal mode of action, while current invention does not seek to use oil to reduce drift of sprayed chemicals as Parrish and the ranges of oil combinations by Parrish is not applicable.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., effective commercial outcome as a herbicide; oil not being used to reduce drift of sprayed chemicals) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Machado teaches that pesticide broadly refers to an agent that can be used to control and/or kill a pest, which can include herbicides (e.g., [0025]), and the composition is not limited to fungicides, as specified that the composition can include crop protection agents including herbicides (e.g., [0080]). Therefore, the prior art are properly combined to show the currently claimed elements. Moreover, the office action has been updated art rejections based upon claim amendments filed on 06/11/2026.
Please refer to the entire office action as a complete response to remarks/arguments.
Conclusion
No claims are allowed.
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/DX.Z./Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616
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