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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 March 3, 2026 has been entered.
Claims 1, 9-13, and 16-18 are pending in the application. Claims 1, 13, 17, and 18 have been amended. Claims 2-8, 14-15, and 19 have been cancelled. Claims 1, 9-13, and 16-18 will be examined.
Status of the Claims
The rejection of claims 1, 5, 9, 13, 15-17 and 18 under 35 U.S.C. 103 as being unpatentable over the Merchant Publication (2014, Weed Technology, Merchant et al.). is withdrawn due to Applicant’s amendment to the claims.
The rejection of claims 1, 9, 10, 11, 12, 13, 16 and 18 under 35 U.S.C. 103 as being unpatentable over Winter et al. (WO 2019/030087) in view of the Merchant Publication (2014, Weed Technology, Merchant et al.) is maintained.
The rejection of claims 1, 9, 10, 11, 17, and 18 under 35 U.S.C. 103 as being unpatentable over the Kaur Publication (2014, Weed Technology, Kaur et al.) is maintained.
The rejection of claims 1, 2, 5, 9, 10, 13, 15, and 16-17 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 4, 8, and 11-17 of copending Application No. 18,252,503 (‘503) is maintained.
Rejections and/or objections not reiterated from the previous Office Action are hereby withdrawn. The following rejections are reiterated. They constitute the complete set of rejections presently being applied to the instant application.
Claim Objections
Claim 1 is objected to because of the following informalities: missing comma. There is a missing comma between “haloxyfop” and “fenoxaprop” in line 16. 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 1, 9, 10, 11, 12, 13, and 16 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 1, lines 15-16 recite “wherein the aryloxyphenoxy propionate is selected from clodinafop, cyhalofop, haloxyfop, fenoxaprop, fluazifop, and quizalofop”. The use of the conjunction “and” makes the claim indefinite. The claim can be interpreted as the aryloxyphenoxy propionate includes all of the claimed herbicides. However, the use of the phrase “is selected from” suggests the alternative. This is the improper use of Markush language. The claim will be interpreted in the alternative, “wherein the aryloxyphenoxy propionate is selected from the group consisting of clodinafop, cyhalofop, haloxyfop, fenoxaprop, fluazifop, and quizalofop”.
Claim 1, line 17 recites “wherein the cyclohexanedione is selected from clethodim and sethoxydim”. The use of the conjunction “and” makes the claim indefinite. The claim can be interpreted as the cyclohexanedione includes all of the claimed herbicides. However, the use of the phrase “is selected from” suggests the alternative. This is the improper use of Markush language. The claim will be interpreted in the alternative, “wherein the cyclohexanedione is selected from the group consisting of clethodim and sethoxydim”.
Claims 9-13 and 16 are dependent from claim 1 and are also rejected.
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1, 9, 10, 11, 12, 13, 16 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Winter et al. (WO 2019/030087) in view of the Merchant Publication (2014, Weed Technology, Merchant et al.). Winter et al. cited by Application on the IDS dated 11/14/2022. The Merchant Publication cited by Applicant on the IDS dated 10/7/2024.
Applicant’s Invention
Applicant claims a method of controlling herbicide resistant weeds by applying concurrently or subsequently or sequentially to a locus a combination of herbicide, the combination comprising: (i) applying in a first application one or more herbicides selected from 5-enolpyruvylshikimate-3-phosphate synthase inhibiting herbicides, and glutamine synthetase inhibiting herbicides, and (ii) applying in a second application one or more herbicides selected from 5-enolpyruvylshikimate-3-phosphate synthase inhibiting herbicides, glutamine synthetase inhibiting herbicides, and acetyl-CoA carboxylase (ACCase) inhibiting herbicides, wherein the second application is applied at least 7 days after the first application, wherein the 5-enolpyruvylshikimate-3-phosphate synthase inhibiting herbicide is glyphosate, wherein the glutamine synthetase inhibiting herbicide is glufosinate, wherein the acetyl-CoA carboxylase inhibiting herbicide is selected from the group consisting of aryloxyphenoxy propionate, cyclohexanodiones, and phenylpyrazole, wherein the aryloxyphenoxy propionate is selected from clodinafop, cyhalofop, haloxyfop, fenoxaprop, fluazifop, and quizalofop, wherein the cyclohexanedione is selected from clethodim and sethoxydim, wherein the phenylpyrazole is pinoxaden, and wherein the herbicides of the first application and second application are applied at a rate of 0.5 to 8 L/ha.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Winter et al. teach herbicidal mixtures comprising L-glufosinate and at least one lipid biosynthesis inhibitor (Abstract).
Regarding claims 1, 5, and 18, Winter et al. teach a compound comprising glufosinate and haloxyfop (composition M-9) and glufosinate and clethodim (composition M-1) (pages 6-7, Table 1).
Regarding claim 1, Winter et al. teach the mixtures are applied to locus mainly by spraying, in particular foliar spraying of an aqueous dilution of the active ingredients of the mixture. Winter et al. teach application is carried out by customary spraying techniques, for example, water as carrier and spray liquor rates of from about 10 to 2000 l/ha or 50 to 1000 l/ha (page 40, lines 8-11).
Regarding claims 3 and 4, Winter et al. teach preferred compounds II are clethodim, clodinafop, fenoxaprop, haloxyfop, fluazifop, sethoxydim and pinoxaden (pages 4, lines 41-42-page 5, lines 1-2; page 5, lines 22-28).
Winter et al. teach the mixtures can be applied pre- or post-emergence. Preferred is the application as post-emergence treatment (page 21, lines 40-42).
Winter et al. teach for burndown; the inventive mixtures is applied to date up to 9 months. The burndown application can be done at a date up to 1 day prior to emergence of the crop plant and is preferably done at a date prior to seeding/planting of the crop plant. Winter et al. teach it is possible to repeat the burndown application once or more, e.g. once or twice within the time frame (page 22, lines 20-31).
Regarding claims 11 and 12, Winter et al. teach both L-glufosinate alone as well as the inventive mixtures are suitable for controlling a large number of harmful plants in agricultural crops including Echinochloa crusgalli, Digitaria sanguinalis, Digitaria insularis, Setaria virdis, Setaria faberii, Setaria glauca, Avena fatua, and Eleusine indica (page 24, lines 1-19).
Regarding claim 15, Winter et al. teach generally the application rate of L-glufosinate is 50 g/ha to 3000 g/ha. The rate of application of the lipid biosynthesis inhibitor ranges from 5 g/ha to 900 g/ha (page 40, lines 17-21).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Winter et al. do not specifically disclose the second herbicide application is applied at least 7 days after the first application, as claimed in claim 1, the first application and second application are applied at a rate of 0.5 to 8 L/ha, as claimed in claim 1, the second application is applied at least 14 days after the first application, as claimed in claim 9; the second application is applied at least 35 days after the first application, as claimed in claim 10; the herbicide is applied in an amount of about 5 g/ha to about 500 g/ha, as claimed in claim 13, or the first application and second application are applied at a rate of 1 to 5 L/ha, as claimed in claim 16 or the first application and second application are applied at a rate of 0.1 to 10 L/ha, as claimed in amended claim 18. It is for this reason the Merchant Publication is added as a secondary reference.
Merchant et al. teach glyphosate-resistant Palmer amaranth escaping residual herbicides is difficult to manage in cotton because of its rapid growth and a limited number of effective herbicide options to control emerged plants (page 316, Abstract).
Merchant et al. teach the experiment was a RCB design implementing a factorial treatment arrangement including three POST herbicide options and three timing intervals between POST herbicide applications. POST herbicide options included sequential applications of 2,4-D amine at 840 g ae ha-1, sequential applications of 2,4-D amine tank mixed with glufosinate at 600 g ai ha-1, and 2,4-D followed by glufosinate. Merchant et al. teach interval options between POST herbicide applications within each system included 5, 10, and 15 d (page 318, col. 1, paragraph 1).
Merchant et al. teach in Table 4 Large Palmer amaranth and carpetweed response to herbicide systems at an irrigated production site in Decatur County, GA, POST herbicide application of 2,4-D +glufosinate followed by 2,4-D + glufosinate wherein the interval between POST applications is 10d and 15d. The treatments provide 99% control of glyphosate resistant Palmer amaranth and 99% control of Carpetweed.
Finding a prima facie obviousness Rationale and Motivation
(MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to use the teachings of Winter et al. and the Merchant Publication and apply the second herbicide application at least 7 days after the first application, as claimed in claim 1, apply the second application at least 14 days after the first application, as claimed in claim 9; and apply the second application at least 35 days after the first application, as claimed in claim 10. Winter et al. teach herbicidal mixtures comprising L-glufosinate and at least one lipid biosynthesis inhibitor. Winter et al. teach a compound comprising glufosinate and haloxyfop (composition M-9) and glufosinate and clethodim (composition M-1). Winter et al. teach for burndown; the inventive mixtures is applied to date up to 9 months. The burndown application can be done at a date up to 1 day prior to emergence of the crop plant and is preferably done at a date prior to seeding/planting of the crop plant. Since Winter et al. teach it is possible to repeat the burndown application once or more, e.g. once or twice within the time frame, one of ordinary skill in the art would have been motivated to use the teachings of Merchant et al. to determine the second application timing. It would have been obvious to one of ordinary skill in the art to use the teachings of Winter et al., as modified by Merchant, to determine the timing of the second application. One of ordinary skill in the art would have been motivated to apply the second application at least 7 days after the first application, at least 14 days after the first application and at least 35 days after the first application because Merchant et al. teach interval options between POST herbicide applications within each system included 5, 10, and 15 d. Merchant et al. teach glufosinate applied 10 to 15 days apart controlled the target weeds. One of ordinary skill in the art would have been motivated to use known teachings to determine the application timing of the second application, with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
Regarding the application rates, one of ordinary skill in the art would have been motivated to use experimentation and optimization to determine the amount of first and second application rates of the herbicides to control the resistant weeds, including the application rates claimed in claims 1, 13, 16, and 18. Winter et al. teach generally the application rate of L-glufosinate is 50 g/ha to 3000 g/ha. The rate of application of the lipid biosynthesis inhibitor ranges from 5 g/ha to 900 g/ha. The claimed application rate of 5 g/ha to about 500 g/ha falls within the ranges taught by Winter et al. Merchant further teaches that all applications were made with a CO2 -pressurized backpack sprayer to deliver 140 L ha-1. While the application rate is higher than that claimed in claims 1 and 18, one of ordinary skill in the art would have been motivated to use experimentation and optimization to determine the amount of first and second application rates of the herbicides to control the resistant weeds, including the application rates claimed in claims 1, 16, and 18. Based on these teachings, one of ordinary skill in the art would have been motivated to use these teachings to determine the optimal amount of glufosinate and second herbicide to use to effectively control undesirable weeds. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Response to Arguments
Applicant's arguments filed February 23, 2026 and March 3, 2026 have been fully considered but they are not persuasive. Applicant argues neither Winter or Merchant teaches or suggest applying the herbicides of both applications at 0.5 to 8 liters per hectare, or the second application is applied at least 7 days after the first application.
In response to Applicant’s argument regarding the application rates, one of ordinary skill in the art would have been motivated to use experimentation and optimization to determine the amount of first and second application rates of the herbicides to control the resistant weeds, including the application rates claimed in claims 1, 13, 16, and 18. Winter et al. teach generally the application rate of L-glufosinate is 50 g/ha to 3000 g/ha. The rate of application of the lipid biosynthesis inhibitor ranges from 5 g/ha to 900 g/ha. The claimed application rate of 5 g/ha to about 500 g/ha falls within the ranges taught by Winter et al. Merchant further teaches that all applications were made with a CO2 -pressurized backpack sprayer to deliver 140 L ha-1. While the application rate is higher than that claimed in claims 1 and 18, one of ordinary skill in the art would have been motivated to use experimentation and optimization to determine the amount of first and second application rates of the herbicides to control the resistant weeds, including the application rates claimed in claims 1, 16, and 18. Based on these teachings, one of ordinary skill in the art would have been motivated to use these teachings to determine the optimal amount of glufosinate and second herbicide to use to effectively control undesirable weeds. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
In response to Applicant’s argument regarding the second application is applied at least 7 days after the first application, Winter et al. also teach the active compounds present in the inventive mixtures can be applied simultaneous or in succession, where undesirable vegetation may occur. Winter et al. teach that it is immaterial whether the individual compounds present in the mixtures are formulated jointly or separately and applied jointly or separately. Winter et al. teach in the case of separate application, in which order the application takes place. It is only necessary that the individual compounds present in the inventive mixtures area applied in a time frame, which allows simultaneous action of the active ingredients on the undesirable plants. Since Winter et al. teach it is possible to repeat the burndown application once or more, e.g. once or twice within the time frame, one of ordinary skill in the art would have been motivated to use the teachings of Merchant et al. to determine the second application timing. It would have been obvious to one of ordinary skill in the art to use the teachings of Winter et al., as modified by Merchant, to determine the timing of the second application. One of ordinary skill in the art would have been motivated to apply the second application at least 7 days after the first application, at least 14 days after the first application and at least 35 days after the first application because Merchant et al. teach interval options between POST herbicide applications within each system included 5, 10, and 15 d. Merchant et al. teach glufosinate applied 10 to 15 days apart controlled the target weeds. One of ordinary skill in the art would have been motivated to use known teachings to determine the application timing of the second application, with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
Claims 1, 9, 10, 11, 17, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over the Kaur Publication (2014, Weed Technology, Kaur et al.) The Kaur Publication cited by Applicant on the IDS dated 5/27/2025.
Applicant’s Invention
Applicant claims a method of controlling herbicide resistant weeds by applying concurrently or subsequently or sequentially to a locus a combination of herbicide, the combination comprising: (i) applying in a first application one or more herbicides selected from 5-enolpyruvylshikimate-3-phosphate synthase inhibiting herbicides, and glutamine synthetase inhibiting herbicides, and (ii) applying in a second application one or more herbicides selected from 5-enolpyruvylshikimate-3-phosphate synthase inhibiting herbicides, glutamine synthetase inhibiting herbicides, and acetyl-CoA carboxylase (ACCase) inhibiting herbicides, wherein the second application is applied at least 7 days after the first application, wherein the 5-enolpyruvylshikimate-3-phosphate synthase inhibiting herbicide is glyphosate, wherein the glutamine synthetase inhibiting herbicide is glufosinate, wherein the acetyl-CoA carboxylase inhibiting herbicide is selected from the group consisting of aryloxyphenoxy propionate, cyclohexanodiones, and phenylpyrazole, wherein the aryloxyphenoxy propionate is selected from clodinafop, cyhalofop, haloxyfop, fenoxaprop, fluazifop, and quizalofop, wherein the cyclohexanedione is selected from clethodim and sethoxydim, wherein the phenylpyrazole is pinoxaden, and wherein the herbicides of the first application and second application are applied at a rate of 0.5 to 8 L/ha.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Kaur et al. teach glyphosate-resistant giant ragweed is one of the most competitive weeds of agronomic crops in the United States (Abstract). Kaur et al. teach field experiments were conducted in 2012 and 2013 in a grower’s field infested with glyphosate-resistant giant ragweed. A total of 12 herbicide programs, including preplant followed by POST herbicides, were compared for control of glyphosate-resistant giant ragweed (Table 1) (page 571, col. 1, Materials and Methods, paragraph 1). Kaur et al. teach herbicides were applied with a CO2-pressurized backpack sprayer calibrated to deliver 140 L ha-1. Herbicide treatments were applied as preplant (April 23, 2012 and May 16, 2013), early POST (June 12, 2013 and June 28, 2013) and late POST (July 2, 2013 and July 19, 2013 (page 571, col. 1, Materials and Methods, paragraph 2).
Regarding claims 1, 2, 5, 9, 10, and 17, Kaur et al. teach glyphosate fb glufosinate + cloransulam-methyl + acetochlor. Glyphosate is preplant. Glufosinate + cloransulam-methyl + acetochlor is Early POST. Preplant was 4/23/12 and 5/16/2013. Early POST was June 12, 2013 and June 28, 2013, which is at least 7, 14, and 35 days after the first application (page 572, Table 1).
Regarding claims 1, 5, 9, 10, and 18, Kaur et al. teach glufosinate fb glufosinate fb lactofen. Glufosinate is preplant. The second glufosinate is early POST. Lactofen is late POST. Preplant was 4/23/12 and 5/16/2013. Early POST was June 12, 2013 and June 28, 2013, which is at least 7, 14, and 35 days after the first application (page 572, Table 1).
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(page 572, Table 1). The same treatments are demonstrated in Table 2 and Table 3 (page 574 and page 575).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Kaur et al. do not specifically disclose the herbicides of the first application and the second application are applied at a rate of 0.5 to 8 L/ha, as claimed in claim 1 or 0.1 to 10 L/ha, as claimed in claims 17 and 18.
Finding a prima facie obviousness Rationale and Motivation
(MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to use the teachings of Kaur et al. and use experimentation and optimization to determine the amount of first and second application rates of the herbicides to control the resistant weeds, including the application rates claimed in claim 1. Kaur et al. teach herbicides were applied with a CO2-pressurized backpack sprayer calibrated to deliver 140 L ha-1. While the application rate is higher than that claimed, one of ordinary skill in the art would have been motivated to use experimentation and optimization to determine the amount of first and second application rates of the herbicides to control the resistant weeds, including the application rates of 0.5 to 8 L/ha and 0.1 to 10 L/ha. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results, without evidence to the contrary.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Response to Arguments
Applicant's arguments filed February 23, 2026 and March 3, 2026 have been fully considered but they are not persuasive. Applicant argues Kaur does not teach or suggest the claimed 0.5 to 8 liters per hectare or 0.1 to 10 liters per hectare. In response to Applicant’s argument, while the application rate is higher than that claimed in claims 1, 17, and 18, one of ordinary skill in the art would have been motivated to use experimentation and optimization to determine the amount of first and second application rates of the herbicides to control the resistant weeds, including the application rates claimed in claims 1, 17, and 18. Based on these teachings, one of ordinary skill in the art would have been motivated to use these teachings to determine the optimal amount of glufosinate and second herbicide to use to effectively control undesirable weeds. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 2, 5, 9, 10, 13, 15, and 16-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 4, 8, and 11-17 of copending Application No. 18,252,503 (‘503). Although the claims at issue are not identical, they are not patentably distinct from each other because each is drawn to a method of controlling herbicide resistant weeds by applying sequentially to a locus a combination of herbicides comprising, a first application comprising a combination of glyphosate and/or one or more herbicides and a second application comprising a combination of glufosinate and/or one or more herbicides, wherein the second application of the combination of herbicides is applied at least seven days after the first application (claims 1, 2, 5, and 17, instant invention; claims 1, 3, 4, and 8, copending application ‘503). Each claims the second application is applied at least 14 days after the first application (claim 9, instant invention; claim 11, copending application No. ‘503). Each claims the second application is at least 30 or 35 days after the first application (claim 12, instant application; claim 12, copending application No. ‘503). Each claims the concentration of one or more herbicides of the first application is ranging from 500 to 1500 g/ha, 200 to 800 g/ha, and 10 to 1200 g/ha (claim 13, instant invention; claims 13, 14, and 15, copending application No. ‘503). Each claims the herbicide combinations are applied at a rate of 0.1 to 10 L/ha and 1 to 5 L/ha (claims 1 and 13, instant invention; claims 16 and 17, copending application No. ‘503). For these reasons, one of ordinary skill in the art would conclude that the invention defined in the instant claims are obvious over the invention defined in the claims of copending application ‘503.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
The examiner notes applicants request to hold the double patenting rejection in abeyance. The rejection of claims 1, 2, 5, 9, 10, 13, 15, and 16-17 provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1, 3, 4, 8, and 11-17 of copending Application No. 18,252,503 (‘503) is maintained.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Andriae M Holt whose telephone number is (571)272-9328. The examiner can normally be reached Monday-Friday, 8:00 am-4:30 pm EST.
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/ANDRIAE M HOLT/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
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