DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 31 March 2026 has been entered.
Status of the Claims
Claims 1, 3-8, 11-12 and 14 are pending.
Withdrawn Objections/Rejections
The objection to claim 1 is withdrawn in view of the claim amendments.
The rejection of claim 7 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, is withdrawn in view of the claim amendment to insert “alcohol” before ethoxylate.
The rejections of claims 1, 3-12 and 14 under 35 U.S.C. 102(a)(1) as being anticipated by Burkhardt et al. (New Phytologist, 2012), Basi et al. (Weed Biology and Management, 2014), Wang et al. (CN 104412963 A), Long (US 2010/0022392 A1) and Agbaje et al. (US 6,165,939) are withdrawn in view of the claim amendment to state that the electrolyte is potassium chloride.
The rejections of claims 5-8 under 35 U.S.C. 103 as being unpatentable over Wang et al. (CN 104412963 A) and Long (US 2010/0022392 A1) are withdrawn in view of the claim amendments.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 5-8 and 12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nelson et al. (International Journal of Agronomy, 2012) as evidenced by Rissoli et al. (Chemosphere, 2016), Loveland Products, Inc. (Activator 90 Product Label, 2026) and van Dyke et al. (Cornell University, 2018).
Regarding claims 1, 5-8 and 12, Nelson et al. disclose herbicidal compositions comprising glyphosate (Roundup Original; isopropylammonium glyphosate), a mixture of alkyl polyoxyethylene ethers and free fatty acids (Activator-90; alkylphenol ethoxylate including nonylphenol ethoxylate, tall oil fatty acids, and alcohol ethoxylates), and potassium chloride (0-0-62-0) (pg. 2, col. 2; pg. 3, col. 1; pg. 5, col. 1; pg. 9, col. 1; Tables 3-5). Nelson et al. disclose composition application rates of 140 L ha-1 and 187 L ha-1, and the treatments consisted of application rates of 2.2, 8.8 and 17.6 kg K ha-1 (i.e., 1.18% to 12.57% w/v K), 0.25% v/v or 0.5% v/v surfactant, and 0.84 kg ae ha-1 glyphosate (pg. 2, col. 2 to pg.3, col. 1) for controlling weeds via application to the weeds or their locus.
As evidenced by Rissoli et al., Roundup Original comprises isopropylamine glyphosate (Abstract). As evidenced by Loveland Products, Inc., Activator 90 comprises alkylphenol ethoxylate, tall oil fatty acids and alcohol ethoxylate (Active Ingredient). As evidenced by van Dyke et al., Activator 90 comprises polyethoxylated nonylphenol (pg. 8, Table 1; pg. 22).
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, 3-8, 11-12 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Kuchikata ‘078 (US 5,872,078).
Regarding claims 1 and 5-7, Kuchikata ‘078 teach herbicidal compositions comprising glyphosate (N-phosphonomethylglycine) or a water-soluble salt thereof, a co-herbicide, and at least one surfactant which in its neat form is liquid at 25 °C and which gels in water (Claim 1). The glyphosate is the sodium, potassium or ammonium salt (Claim 2). The co-herbicide includes glufosinate (Claims 6 and 22). The surfactant comprises a nonionic surfactant, an anionic surfactant, a cationic surfactant, an amphoteric surfactant or mixtures thereof, wherein the nonionic surfactant includes polyoxyethylene polyoxypropylene block copolymer, an alkylphenol polyoxyethylene ether, polyoxyethylene oleylether, or mixtures thereof (Claims 8-10). Kuchikata ‘078 further teach that preferably agriculturally acceptable salts of glyphosate include isopropylamine (col. 6, ln. 16-18; Claim 14).
Kuchikata ‘078 do not explicitly disclose herbicidal compositions comprising potassium chloride, as instantly claimed. However, Kuchikata ‘078 teach that the herbicidal composition further comprises ammonium sulfate, potassium sulfate, potassium chloride, sodium sulfate, urea, or mixtures thereof (col. 2, ln. 61-63; col. 6, ln. 31-34; Claim 15).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare herbicidal compositions according to Kuchikata ‘078 comprising glyphosate, a nonionic surfactant and potassium chloride.
Regarding the concentration of nonionic surfactant and potassium chloride, Kuchikata ‘078 teach herbicidal compositions comprising up to 28.05% w/w nonionic surfactant (Examples 3-40), and 5.18%, 20% or 30.44% w/w ammonium sulfate (Examples 11, 24, 34).
It would have been prima facie obvious for a person of ordinary skill in the art to substitute potassium chloride in the place of ammonium sulfate, as Kuchikata ‘078 teach that they are interchangeable (Claim 8).
Regarding claims 3-4, Kuchikata ‘078 teach that co-herbicides include glufosinate ammonium (col. 4, ln. 48-50).
Regarding claim 8, Kuchikata ‘078 teach herbicidal compositions comprising nonylphenol + 9.5 EO (Sterox NJ), nonylphenol + 11 EO (Sterox NK), or nonylphenol + 30 moles EO (T-DET N-307) (Examples 36 and 39-40).
Regarding claims 11 and 14, Kuchikata ‘078 teach that examples of liquid anionic surfactants (typically solids unless dissolved in water) are sodium alkyl sulfate, sodium mono- and di-alkyl naphthalene sulfonates, sodium alpha-olefin sulfonate, sodium alkane sulfonates, alkylsulfates, polyoxyalkyene alkylether sulfate, polyoxyalkylene alkylarylether sulfates, polyoxy-alkylene styrylphenylether sulfate, mono- and di-alkylbenzene sulfonates, alkylnaphthalene sulfonate, alkylnaphthalene sulfonate formaldehyde condensate, alkyl diphenylether sulfonates, and olefine sulfonates (col. 5, ln. 63 to col. 6, ln. 11; Examples 4, 6-7, 27, 30, 35, 37; Claim 10). Kuchikata ‘078 teach examples comprising sodium lauryl sulfate (Stepanol Me-dry sodium; Texapon K1296) (Examples 7, 27, 30, 37).
Regarding claim 12, Kuchikata ‘078 teach another object of this invention to provide a herbicidal method of use for killing and controlling weeds by applying a herbicidally effective amount of said composition to the locus of the plant or weed to be killed or controlled (col. 3, ln. 53-57; col. 7, ln. 37-48).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare herbicidal compositions according to Kuchikata ‘078 comprising glyphosate and the co-herbicide glufosinate, in combination with a nonionic surfactant and anionic surfactant, and potassium chloride. A person of ordinary skill in the art would have been motivated to use the composition to kill and control weeds by applying a herbicidally effective amount of said composition to the locus of the plant or weed to be killed or controlled, as suggested by Kuchikata ‘078
Claims 1, 3-8, 11-12 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Kuchikata ‘807 (US 6,228,807).
Regarding claims 1 and 5-7, Kuchikata ‘807 teach herbicidal compositions comprising glyphosate (N-phosphonomethylglycine) or a water-soluble salt thereof, at least one surfactant, and less than 5% by weight water (Claim 1). The glyphosate is the sodium, potassium or ammonium salt, and the surfactant comprises a nonionic surfactant, an anionic surfactant, a cationic surfactant, an amphoteric surfactant or mixtures thereof, wherein the nonionic surfactant includes polyoxyethylene polyoxypropylene block copolymer, an alkylphenol polyoxyethylene ether, polyoxyethylene oleylether, or mixtures thereof (Claims 2-5). Kuchikata ‘807 further teach that preferably agriculturally acceptable salts of glyphosate include isopropylamine (col. 6, ln. 31-33).
Kuchikata ‘807 do not explicitly disclose herbicidal compositions comprising potassium chloride, as instantly claimed. However, Kuchikata ‘807 teach that the herbicidal composition further comprises ammonium sulfate, potassium sulfate, potassium chloride, sodium sulfate, urea, or mixtures thereof (Claim 8).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare herbicidal compositions according to Kuchikata ‘807 comprising glyphosate, a nonionic surfactant and potassium chloride.
Regarding the concentration of nonionic surfactant and potassium chloride, Kuchikata ‘807 teach herbicidal compositions comprising up to 28.05% w/w nonionic surfactant (Examples 3-40), and 5.18%, 20% or 30.4% w/w ammonium sulfate (Examples 11, 24, 34).
It would have been prima facie obvious for a person of ordinary skill in the art to substitute potassium chloride in the place of ammonium sulfate, as Kuchikata ‘807 teach that they are interchangeable (Claim 8).
Regarding claims 3-4, Kuchikata ‘807 teach that co-herbicides include glufosinate ammonium (col. 4, ln. 59-63).
Regarding claim 8, Kuchikata ‘807 teach herbicidal compositions comprising nonylphenol + 9.5 EO (Sterox NJ), nonylphenol + 11 EO (Sterox NK), or nonylphenol + 30 moles EO (T-DET N-307) (Examples 36 and 39-40).
Regarding claims 11 and 14, Kuchikata ‘807 teach that examples of liquid anionic surfactants (typically solids unless dissolved in water) are sodium alkyl sulfate, sodium mono- and di-alkyl naphthalene sulfonates, sodium alpha-olefin sulfonate, sodium alkane sulfonates, alkylsulfates, polyoxyalkyene alkylether sulfate, polyoxyalkylene alkylarylether sulfates, polyoxy-alkylene styrylphenylether sulfate, mono- and di-alkylbenzene sulfonates, alkylnaphthalene sulfonate, alkylnaphthalene sulfonate formaldehyde condensate, alkyl diphenylether sulfonates, and olefine sulfonates (col. 6, ln. 10-26; Examples 4, 6-7, 27, 30, 35, 37). Kuchikata ‘807 teach examples comprising sodium lauryl sulfate (Examples 7, 27, 30, 37).
Regarding claim 12, Kuchikata ‘807 teach another object of this invention to provide a herbicidal method of use for killing and controlling weeds by applying a herbicidally effective amount of said composition to the locus of the plant or weed to be killed or controlled (col. 3, ln. 63-67; col. 7, ln. 56-67).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare herbicidal compositions according to Kuchikata ‘807 comprising glyphosate and the co-herbicide glufosinate, in combination with a nonionic surfactant and anionic surfactant, and potassium chloride. A person of ordinary skill in the art would have been motivated to use the composition to kill and control weeds by applying a herbicidally effective amount of said composition to the locus of the plant or weed to be killed or controlled, as suggested by Kuchikata ‘807
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, 3-4, 7, 9-10 and 12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4, 13-14 and 16 of copending Application No. 17/687,001 in view of Agbaje et al. (US 6,165,939). The ‘001 Application claims a liquid herbicidal composition comprising a) L-glufosinate salt, b) at least one organic solvent or a liquid surfactant selected from alcohol ethoxylate, alkyl ether phosphate, alkyl aryl ether phosphate, sulfosuccinate and its derivatives, and c) water; as well as a process for preparing said composition. The ’001 Application also claims that the L-glufosinate salt includes monosodium, disodium, and ammonium salts. The ‘001 Application further claims the composition further comprising an additional herbicide.
The ‘001 Application does not claim at least one electrolyte comprising potassium chloride, as instantly claimed.
However, Agbaje et al. teach herbicidal compositions comprising glyphosate or glufosinate, a nonionic surfactant, and an electrolyte. Agbaje et al. teach that the composition may include inorganic salts. For example, an inorganic ammonium salt such as ammonium sulfate that is known to enhance herbicidal efficacy of glyphosate on certain weed species, or to reduce antagonism of glyphosate herbicidal efficacy by the chloroacetamide and/or triazine herbicides also present in the composition, can usefully be included. Illustrative inorganic salts that can be present are ammonium carbonate, ammonium bicarbonate, ammonium chloride, ammonium fluoride, ammonium nitrate, ammonium biphosphate, ammonium dihydrogen phosphate, ammonium sulfate, ammonium bisulfate, ammonium bisulfite, ammonium thiocyanate, potassium carbonate, potassium bicarbonate, potassium chloride, potassium nitrate, potassium phosphate, potassium biphosphate, potassium dihydrogen phosphate, potassium sulfate, potassium bisulfate, potassium sulfite, potassium bisulfite, sodium carbonate, sodium bicarbonate, sodium chloride, sodium nitrate, sodium phosphate, sodium biphosphate, sodium dihydrogen phosphate, sodium sulfate, sodium bisulfate, sodium sulfite and sodium bisulfite (col. 11, ln. 14-33).
Therefore, it would have been prima facie obvious to prepare the compositions according to the ‘001 Application further comprising an inorganic salt electrolyte such as potassium chloride according to Agbaje et al. Such would have been obvious because Agbaje et al. teach that inorganic salts may be included in their herbicidal compositions, including potassium chloride with the aim of further enhancing herbicidal efficacy.
Regarding instant claim 12, the ‘001 Application claims herbicidal compositions. It would have been prima facie obvious for a person of ordinary skill in the art to use the herbicidal compositions for their intended purpose of controlling weeds and grasses.
This is a provisional nonstatutory double patenting rejection.
Response to Arguments
Applicant's arguments filed 17 February 2026 have been fully considered but they are not persuasive. Applicant argues that since neither the present claims nor the claims of any of the copending Applications have been patented, there is no way that double patenting can be determined. Applicant respectfully requests the provisional rejection be held in abeyance until such time as patentable subject matter is identified in two applications and a proper assessment of double patenting can be made.
The examiner respectfully argues that the rejection is a provisional nonstatutory double patenting rejection since the claims in the copending application have not been allowed. Since Applicant has not filed a terminal disclaimer and the arguments are not persuasive, the provisional nonstatutory double patenting rejection is maintained.
Claims 1, 3-5, 7-10 and 12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 18 and 22-23 of copending Application No. 17/687,179. The ‘179 Application claims a liquid agrochemical composition comprising L-glufosinate ammonium, 5-30% wt. of a surfactant comprising C8-C10 alkyl polyglycoside, an N-alkyl glucamide, a C8-C20 alkyldimethylamine N-oxide, or a combination thereof, and 0.2-2% wt. of potassium chloride. The ‘179 Application further claims a composition further comprising glyphosate.
This is a provisional nonstatutory double patenting rejection.
Response to Arguments
Applicant's arguments filed 17 February 2026 have been fully considered but they are not persuasive. Applicant argues that since neither the present claims nor the claims of any of the copending Applications have been patented, there is no way that double patenting can be determined. Applicant respectfully requests the provisional rejection be held in abeyance until such time as patentable subject matter is identified in two applications and a proper assessment of double patenting can be made.
The examiner respectfully argues that the rejection is a provisional nonstatutory double patenting rejection since the claims in the copending application have not been allowed. Since Applicant has not filed a terminal disclaimer and the arguments are not persuasive, the provisional nonstatutory double patenting rejection is maintained.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nathan W Schlientz whose telephone number is (571)272-9924. The examiner can normally be reached 10:00 AM to 6:00 PM, Monday through Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue Liu can be reached at (571) 272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/N.W.S/Examiner, Art Unit 1616
/ERIN E HIRT/Primary Examiner, Art Unit 1616
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