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 .
Status of Claims
Amendment filed on 10/01/2025 is acknowledged.
Claims 1-2, 4, 6, 8-10, and 16 are amended.
Claims 11, 15, 17, 20, 22, 26-30 remain cancelled. Claims 12-14 and 23-24 are now cancelled.
Claims 1-10, 16, 18-19, 21, and 25 are pending and being examined on 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 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 1-3, 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 Machado et al. (US20190150430, 05/23/2019) and Parrish (US20150045224, 02/12/2015).
Regarding instant 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, 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.
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 and 8, 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 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.
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, fatty acid, penetrants taught by Cobb, Machado, and Parrish to arrive at current invention. Because 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. 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 volume 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 4-5 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Cobb (US20190082698, 03/21/2019, IDS of 09/23/2022), Machado et al. (US20190150430, 05/23/2019) and Parrish (US20150045224, 02/12/2015), as applied to claims 1-3, 6, 8, 10, 16, 18, 21, and 25 above, and further in view of Atsushi et al. (JP2008069091, 03/27/2008, in record of 04/01/2025).
Cobb, Machado and Parrish teach 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 at least one adjuvant, e.g., sugar, plant-based natural sugar like sucrose and fructose, sugar substitute like 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 1-3, 6, 8, 10, 16, 18, 21, and 25 above, and incorporated herein.
Cobb, Machado and Parrish does not teach sugar substitutes including saccharin, sodium saccharin, stevia rebaudiana, siraitia grosvenori, aspartame, acesulfame potassium, sucralose, neotame, and advantame as recited in instant claims 4-5 and 9.
Atsushi teaches herbicidal composition with reduced chemical injury (Title) that can be applied to paddy fields by conventional methods such as spraying [0035], comprising compound a) 2-{2-chloro-4-mesyl-3-[(tetrahydrofuran-2-ylmethoxy)methyl]benzoyl}cyclohexane-1,3-dione in combination with (b) at least one compound selected from the group consisting of benzisothiazolinone derivatives, benzamide derivatives, benzothiazole derivatives, benzoxazolinone derivatives, benzoxazine derivatives, thiadinil, isoprothiolane, hexamethylenetetramine, potassium oxalate and vanillin derivatives [0005]. Among the compounds b), Atsushi exemplifies that the benzoisothiazolinone derivatives include 1,2-benzoisothiazolin-3-one and its sodium salt, probenazole, and saccharin (corresponding to instant claims 4-5, and 9).
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 incorporate a known suitable agent, for this instance, the sugar substitute saccharin, taught by Atsushi and incorporate into the herbicide composition and method taught by Cobb, Machado and Parrish to arrive at current invention comprising sugar as adjuvant to achieve vegetation control. Because Atsushi points out that according to the invention, surprisingly, when the herbicidal compound a) and compound b), as shown above, are used in combination, the compound b), e.g., saccharin, can reduce the phytotoxicity caused by the herbicidal compound a), and thus it is possible to use the herbicidal compound even in crop-growing regions where it has been difficult to apply the herbicidal compound, thereby exhibiting an extremely useful effect [0006]. Since Cobb, Machado and Parrish, as well as Atsushi implement phytotoxicity composition and method for achieving same intended vegetation control or plant pest control, using saccharin flows with the logic for potential extreme benefit in the herbicide composition. Artisans in the field would have reasonable expectations of success. 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).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Cobb (US20190082698, 03/21/2019, IDS of 09/23/2022), Machado et al. (US20190150430, 05/23/2019) and Parrish (US20150045224, 02/12/2015), as applied to claims 1-3, 6, 8, 10, 16, 18, 21, and 25 above, and further in view of Richard et al. (WO2010116256, 10/14/2010, in record of 04/01/2025).
Cobb, Machado and Parrish teach 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 at least one adjuvant, e.g., sugar, plant-based natural sugar like sucrose and fructose, sugar substitute like 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 1-3, 6, 8, 10, 16, 18, 21, and 25 above, and incorporated herein.
Cobb, 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.
Richard directs to a method and composition for reducing the number of fruits and/or flowers on plants by treating the plants with, particularly but not exclusively, anthranilic acid (referred to as “AN”) (Field of invention). Richard teaches that AN is used as an intermediate for production of dyes, pigments, and saccharin (Pg. 2, 2nd paragraph). Richard indicates that AN, or an analog, or a derivative can be used as a chemical thinning agent, and that the AN derivative compound can be in the form of a conjugate, e.g., conjugated to a sugar, and alcohol (Pg. 3, 3rd and 5th paragraphs). Richard teaches the composition comprises at least one compound from a) group of sugar including glucose, sucrose, fructose, erythrose, ribulose, and many others, sugar alcohols such as sorbitol and mannitol (corresponding to instant claim 7); b) an organic acid and other components (Pg. 6 or 8, top paragraph). Richard teaches that the chemical thinner solution can be mixed on site in the spray tank or delivered and stored in aqueous solution, to ensure proper mixing and dilution (Pg. 17, 2nd Paragraph).
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 taught by Richard and incorporate them into the herbicide composition and method taught by Cobb, Machado and Parrish to arrive at current invention to achieve vegetation control. Because Cobb teaches that sugar alcohol with sugar is suitable for the phytotoxicity composition as vegetation control topical method, while Richard composition and method is using mannitol and sorbitol with the same intended use for controlling and reducing plant growth, one of ordinary skill in the art would have a reasonable expectation of success resulting from implementing mannitol or sorbitol as sugar alcohol 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).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Cobb (US20190082698, 03/21/2019, IDS of 09/23/2022), Machado et al. (US20190150430, 05/23/2019) and Parrish (US20150045224, 02/12/2015), as applied to claims 1-3, 6, 8, 10, 16, 18, 21, and 25 above, and further in view of Aelbrecht et al. (CN105658068, 06/08/2016, in record of ).
Cobb, Machado and Parrish teach 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 at least one adjuvant, e.g., sugar, plant-based natural sugar like sucrose and fructose, sugar substitute like 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 1-3, 6, 8, 10, 16, 18, 21, and 25 above, and incorporated herein.
Cobb teaches that citrus oil, lemon oil, clove oil, cinnamon oil, and various combinations of these and similar substances can be included as active ingredients for the herbicides [0006]. Parrish teaches vegetable oil, seed oil, soybean oil, etc. (e.g., claims 31-32, 50).
Cobb, Machado and Parrish do not teach one essential oil selected from pine oil, manuka oil, and tea tree oil in the composition as recited in instant claim 19.
Aelbrecht teaches a composition liquid dispersion that contains plant growth regulator comprising at least a growth regulator, an organic hydrophobic carrier, an emulsifier, with the dispersion to be diluted in water in a 1:50 dilution or more (Claim 1). Aelbrecht indicates that the dispersion contains an emulsifier as an essential component [0061], preferably, the emulsifier is an alkoxylated sugar, preferably esterified with fatty acids. Suitable sugars or polyols are pentaeritritol, sorbitol, maltose, trimethylolpropane, ethylene glycol and the like [0062]. Aelbrecht teaches that pine needle oil can be added into the composition together with other adjuvants such as ammonium sulfate, betaine hydrochloride, adipic acid, and others [0128].
It would have been prima facie obvious for one of ordinary skill in the art to incorporate the pine oil taught by Aelbrecht into the known composition and method of Cobb, Machado and Parrish to arrive at instant invention, because Cobb teaches essential oils are suitable to be included as active ingredients for the vegetation control method and Parrish also teaches vegetable oil and other plant oils are suitable for the composition and method, while Aelbrecht uses pine oil in a similar composition and method, one of ordinary skill in the art would have a reasonable expectation of success resulting from adding pine oil into the composition. This renders obviousness as combining prior art elements according to known methods to yield predictable results, see In Supreme Court KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007). (The Supreme Court in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007), identified a number of rationales to support a conclusion of obviousness which are consistent with the proper "functional approach" to the determination of obviousness as laid down in Graham and listed examples of rationale that may support a conclusion of obviousness).
Response to Arguments
Applicant’s arguments filed on 10/01/2025 have been fully considered.
Applicant argued that Cobb discloses the use of an aqueous solution of a stated pH including a known range of acidic products that act on a contact basis and a translocating action, which is in contrast to the instant composition of claim 1 which recites no acidic component, and rather specifies an osmotic action: … to induce osmosis on the cells of the foliage and destroy those cells, and wherein … a penetrant is included in the solution to promote the osmotic action of the solution.
In response to applicant's argument that the instant composition of claim 1 is “to induce osmosis on the cells of the foliage and destroy those cells, and wherein … a penetrant is included in the solution to promote the osmotic action of the solution”. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Prior art Cobb teaches the sugar-comprising composition and administering method to induce phytotoxicity on foliage, with humectants and adjuvants and penetrants, and thus prior art structure is essentially the same capable of performing the intended use, and thus it meets the claim.
The combined teachings of Cobb, Machado and Parrish teach the instantly claimed method of amended claim 1.
Please refer to the entire office action as presented above as a complete response to the remarks and arguments.
Conclusion
No claim is 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.
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/DX.Z./Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616