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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 01/27/26 has been entered.
Claim Interpretation
Applicants amended claim 1 to use the transitional phrase, consisting of. “Consisting of” as a transitional phrase as used by applicants means that the method cannot contain any other ingredients or any other steps than those expressly disclosed in claim 1. That is to say that the method consists of applying a synergistic amount of two herbicides as defined in the claims and nothing else, it cannot contain any other active agents or any formulation adjuvants such as carriers, etc. because the method consists of applying only the disclosed two herbicides. However, applicants are adding additional components including excipients/adjuvants and additional active agents in the dependent claims 18-19 which is not allowed with their current amendment to claim 1.
Thus, for purposes of examination of all pending claims, the examiner is interpreting claim 1 to read as “comprising” for the transitional phrase instead of “consisting of” because comprising allows for the addition of the excipients/adjuvants, etc. and/or active ingredients as claimed in applicants dependent claim 18-19.
Claim Objections
Claim 1 is objected to because of the following informalities: “S-metolachlor” is misspelled as “S-metalochlor” in the claim. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 3-8, 10-19 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The claims are now directed to applying a synergistic amount of two herbicides, specifically D-napropamide and one of the second herbicides listed in the claim. However, there is no mention of the claimed combination of two herbicides being synergistic in the specification and in reviewing the data in the instant specification, the data does not appear to demonstrate clear evidence of any of the newly claimed synergy. The data as presented in the specification has multiple variables which are different from the single treatments of each of napropamide and second herbicide that are instantly claimed from which the expected additive result is to be calculated. That is to say the data from the observed combined treatments claimed cannot be directly compared to each of the single treatments which are intended to be used to calculate the expected additive result because the applications were completed at different timings, etc. from the combined treatments and as such the examiner cannot easily compare the data to determine if there is any actual synergy because the single treatments for comparison have other changed variables which are different from the combined treatments beyond just combining the two herbicides under the same conditions, application timings, etc. which would allow for clear single variable comparisons (i.e. for a proper determination of synergy single treatments should be compared to the combination of active treatments where all other variables are kept the same, e.g. active agents are applied at the same rates, same timings, etc.), and further the argued results are not commensurate in scope with applicants claims as they are currently written as applicants have only tested 1 of the second herbicides for which they are claiming synergy. For example, in Table 9 or Table 3, each of the single treatments were done via pre-emergent application. However, the combined treatment was done post-emergence at BBCH 11 and because each of the single treatments were not applied post-emergence at BBCH 11 at each of the same rates which are used in the combined treatment (which would be required in order to properly calculate synergy and to determine if applicants combinations do in fact exhibit synergy), one cannot clearly assert/claim synergy when applicants have not provided clear evidence of such results as this introduces new matter.
Claims 3-8 and 10-19 are also rejected because they depend from claim 1 and do not resolve the new matter issue with respect to claim 1.
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, 3-8, 10-19 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 is now also indefinite because it recites a synergistic amount. However, it is unclear what amounts of the two herbicides are synergistic and/or what they are synergistic for because the claims never disclose any synergy or synergistic amounts and the term “synergistic amount” in claim 1 is a relative term which renders the claim indefinite. The term “synergistic amount” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Specifically, synergistic amounts are dependent on the type of synergy to be achieved and can be dependent upon application timings, crop or weed type, etc. none of which is disclosed or explained in the instant specification as filed and as such it is completely unclear to the examiner what amounts would fall within the scope of the claimed “synergistic amounts” and which amounts would not be synergistic because as discussed above there is no mention of synergy in the specification and no clear indication of synergy is found in the examples in applicant’s specification as filed. Thus, the metes and bounds of what amounts applicants are trying to encompass with the claim are unclear.
Claims 3-8, 10-19 are also rejected because they depend either directly or indirectly from claim 1 and do not resolve the above ambiguities.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 18-19 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claims 18-19 both depend from claim 1, and claim 1 uses consisting of as the transitional phrase which is closed to any additional components or steps than those which are expressly disclosed/claimed in claim 1. Claims 18 and 19 are adding additional components to the method of claim 1 from which they depend which is contrary to what the definition of the “consisting of” transitional phrase which was used by applicant in claim 1 allows (see MPEP 2111.03). Thus, because claims 18-19 are attempting to add additional components to claim 1 which is not allowed by the use of the transitional phrase “consisting of” used in claim 1, these claims do not further limit claim 1 as it is currently written and actually are improperly broadening claim 1 from which they depend. In order to examine all pending claims of the invention especially since applicants are adding additional components in claims 18-19, for the purposes of applying prior art the examiner is interpreting the “consisting of” in claim 1 as comprising so that all dependent claims can be examined.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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, 10-19 are rejected under 35 U.S.C. 103 as being unpatentable over Kraus et al. (WO2017009138) as evidenced by Shroff et al. (US20140274717), Zhang (Chinese Patent Application Pub. No. CN 108990990 A), and Minnesota (https://web.archive.org/web/20181127171658/https://extension.umn.edu/planting-small-grains/winter-wheat-seeding-rate-and-depth).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Regarding claims 1, 6-8, 18, Kraus teaches combinations which can be synergistic and which comprise napropamide (herbicide B), preferably napropamide-M/napropamide-D, which are different names for the same compound as evidenced by Shroff (Shroff: Abstract; [0001]; [0017]; [0018-0019]), cinmethylin (herbicide A), and which can further comprise the now instantly claimed clomazone, S-metolachlor, etc. (see disclosed combinations A+B+C.27 (C.27=clomazone), A+B+C.95 (C.95=S-metolachlor), etc.), and excipients, e.g. carriers, for controlling weeds within cereal crops, specifically wheat (wherein wheat is planted two times a year, e.g. spring or winter wheat, both of which are readily envisioned and as such clearly includes and reads on the claimed winter wheat), wherein the napropamide, cinmethylin, and the clomazone or S-metolachlor, etc. are applied to the weeds at a locus for growing a cereal crop, specifically wherein the cereal crop is present or is planted at the locus after application of napropamide to the locus (see entire document; abstract; claims; pg. 1, ln. 3-5; pg. 1, ln. 35-pg. 2, ln. 3; pg. 2, ln. 19-33; pg. 3, ln. 32; pg. 4, ln. 24-42; pg. 7, ln. 4-pg. 9, ln. 3; pg. 8, ln. 43-pg. 9, ln. 3; pg. 8, ln. 9-34; pg. 9, ln. 5-20; pg. 46, ln. 33-pg. 61, ln. 13; pg. 61, ln. 25-pg. 65, ln. 5; pg. 2, ln. 19-34; pg. 3, ln. 34-pg. 4, ln. 2; pg. 4, ln. 16-17; pg. 4, ln. 36-37; pg. 6, ln. 9-13; pg. 65, ln. 1-5; pg. 65, ln. 13-34 (seedlings, post-emergence)).
Regarding claims 3-5, Kraus teaches wherein the weeds being controlled include the claimed Alopecurus, specifically Alopecurus myosuroides (was previously cited and covered by the citations below, but there was a typo and the mysuroides was missing from the sentence previously) and wherein the weeds are resistant to control by flufenacet (HRAC K3) and/or pendimethalin (HRAC group K1) (pg. 6, 9-30; pg. 46, ln. 33-pg. 61, ln. 13 (inclusive); specifically pg. 53, ln. 22-pg. 54, ln. 11).
Regarding claims 10-12, Kraus teaches wherein their combination including napropamide, specifically napropamide-D/napropamide-M and the claimed clomazone or S-metolachlor, etc. are applied to the locus pre-emergence of said cereal crop, and after planting the cereal crop at the locus, and wherein the combination can be applied to the locus after emergence of said cereal crop, e.g. while the cereal crop is growing (see entire document; claims; pg. 3, ln. 32; claims; pg. 2, ln. 19-34; pg. 3, ln. 34-pg. 4, ln. 2; pg. 4, ln. 16-17; pg. 4, ln. 36-37; pg. 6, ln. 9-13; pg. 65, ln. 1-5; pg. 65, ln. 13-34 (seedlings, post-emergence); pg. 7, ln. 4-pg. 9, ln. 3; pg. 8, ln. 43-pg. 9, ln. 3; pg. 8, ln. 9-34).
Regarding claim 13, Kraus teaches that their herbicide combinations can be applied to wheat crops and cereal crops while they are growing the field, and as BBCHcereal 01 to BBCHcereal 19 are known growing phases of cereal crops, and Kraus teaches that their combinations comprising napropamide can be applied to growing cereal crops, then Kraus obviously clearly teaches applying/treating cereals during BBCHcereal 01 to BBCHcereal 19, e.g. seedlings (see entire document; claims; pg. 2, ln. 19-34; pg. 3, ln. 34-pg. 4, ln. 2; pg. 4, ln. 16-17; pg. 4, ln. 36-37; pg. 6, ln. 9-13; pg. 65, ln. 1-5; pg. 65, ln. 13-34 (seedlings, post-emergence)).
Regarding claims 16-17, Kraus teaches wherein the combination is applied using napropamide, wherein they prefer napropamide-D/napropamide-M, in rates of 0.1 to 10000 g/ha, specifically 10 to 1500 g/ha which read on the claimed rates/ranges (pg. 66, ln. 9-14; Claims; pg. 3, ln. 32).
Regarding claim 19, Kraus teaches wherein their combination can further comprise pendimethalin, ethofumesate which read claim 19 (pg. 4, ln. 4-5; pg. 7, ln. 4-pg. 9, ln. 20; pg. 18, ln. 42-pg. 19, ln. 39; Claims, claims 1-3, 6). Because while Kraus does not teach wherein their second herbicide is other than cinmethylin. Kraus does teach wherein their compositions can comprise additional herbicides, specifically the instantly claimed clomazone, S-metolachlor, aclonifen, etc. Further, the instant claims are still interpreted as using comprising language as the transitional phrase which is open-ended and does not exclude more than one second or additional herbicides from the claimed combinations or control of other weeds in addition to the control of monocot weeds.
Ascertainment of the Difference Between the Scope of the Prior Art and the Claims (MPEP §2141.02)
Regarding claims 1, 3-8, 10-19 (specifically 8 and 14-15), Kraus does not teach wherein their wheat is specifically winter wheat or is planted at the locus at a depth of at least 1 cm, specifically at least 2 cm. Kraus does not teach that their control is selective for monocot weeds or wherein the combination of the claimed two herbicides is synergistic. However, these deficiencies in Kraus are addressed by Zhang and Minnesota and/or in obviousness statements/discussions below.
As discussed above wheat is planted twice a year specifically spring and winter and as such Kraus clearly teaches wherein the crops include/would be winter wheat.
Zhang discloses that an herbicide composition comprising napropamide and an excipient can be applied to a winter wheat crop for high weeding activity and a wide weed control spectrum, and ensures winter wheat seedling quality and late period winter wheat production (see e.g. Derwent abstract).
Minnesota teaches that it was known in the art to plant cereal crops at depths of at least 1 cm, specifically at least 2 cm, as they teach that typical depths are 1-1.5” for winter wheat (which is greater than 2 cm deep) (see lines 1-2).
Finding of Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have performed/developed the claimed methods in winter wheat because Kraus teaches applying combinations of cinmethylin, clomazone and/or S-metolachlor, and napropamide, specifically napropamide-M/D-napropamide, to selectively control weeds in fields of cereal crops, specifically wheat, wherein the napropamide can be applied pre-emergence of the cereal crop, or after planting the cereal crop in the field/locus, or can be applied after emergence of said cereal crop because Kraus teaches that the combination can be applied to fields where crops have been planted or are growing as discussed above. It would have been obvious to use this method in winter wheat because wheat is planted at two times in a year thus wheat is either spring wheat or winter wheat and it was known to use combinations comprising napropamide, clomazone and/or S-metolachlor, and cinmethylin in winter wheat as is taught by Zhang. It also would have been obvious to plant the winter wheat at least 1 cm deep, specifically at least 2 cm deep because it was known in the art to plant cereal crops at depths of at least 1 cm, specifically at least 2 cm, as they teach that typical depths are 1-1.5” for winter wheat (which is greater than 2 cm deep). Thus, these were known depths for planting cereals/winter wheat.
Regarding the now claimed selective control of monocot weeds, this is result effective of applicants claimed applying step which is taught by the combined prior art as discussed above. Further, “The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.” Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). Thus, whether or not Kraus teaches that their combination selectively control monocot weeds in wheat it is automatically performing these steps whether or not it was recognized by Kraus because this is result effective of the claimed applying step when the claimed combination which is obviously taught by Kraus is applied in/with crops of wheat.
Regarding the claimed synergistic amount of two herbicides, because Kraus teaches that their combinations of herbicides A and B can be synergistic and wherein these synergistic combinations can comprise the claimed second herbicides as herbicide C, it would be obvious to optimize the amounts/ratios of napropamide-D/napropamide-M, cinmethylin, and the claimed second herbicides, e.g. clomazone, S-metolachlor, etc. as claimed in the combinations of Kraus to provide synergistic amounts of all three herbicides because when the combinations of napropamide-D/napropamide-M and cinmethylin are synergistic as taught by Kraus it would be obvious to add synergistic amounts of clomazone and S-metolachlor, etc. to the combination to maintain the synergy of the combination as it is known in the art/routine for one of ordinary skill to optimize the concentrations of known effective herbicides in order to form the most effective synergistic combination especially when the prior art actually teaches that these combinations can exhibit synergy. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the 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, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments/Remarks
Applicant’s amendments to the claims have rendered moot the previous 112(b) rejection. These amendments have also prompted the new grounds of rejection under 112(a), 112(b), and 112(d) presented herein. The 112(d) is prompted because applicants amended claim 1 to use “consisting of” but then are adding additional components specifically adjuvants, excipients, etc. in claim 18 or additional active ingredients in claim 19. However, by using consisting of in claim 1 applicants have closed their claims to any element, step, or ingredient not specified in the claim 1. Thus, claims 18-19 which are adding additional ingredients/elements to the method is not allowed and these claims do not further limit claim 1 from which they depend.
Applicants amendments have also prompted the updated/revised grounds of rejection under 103 presented herein given the new interpretation of applicant’s claims. As discussed above, for purposes of examination and applying prior art because applicants are attempting to add additional components to the method of claim 1 the examiner is interpreting “consisting of” to instead be “comprising” since comprising allows for additional components of claim 18-19 to be added to the method of claim 1 which therefore allows for the examination of all of applicant’s pending claims in this office action.
Applicants arguments have been fully considered but are not persuasive at this time. Applicants argue that they have amended their claims to “consisting of” and that this amendment overcomes the 103 rejection because the cited prior art does not suggest that the method consists of applying a synergistic amount of exactly two herbicides. The examiner agrees that the prior art does not teach wherein the method consists of applying a synergistic amount of exactly two herbicides. However, as currently written applicant’s claimed method actually cannot consist of applying only the claimed two herbicides in a synergistic amount as is asserted because claim 19 states that the combination is comprised in a herbicide composition which further comprises an additional active agent and/or claim 18 is adding additional excipients and/or adjuvants, etc. to the method which is not allowed if claim 1 uses “consisting of” as a transitional phrase as argued.
Thus, for complete examination of all of applicant’s pending claims, claim 1 cannot consist of applying only a synergistic amount of exactly two herbicides as asserted and argued by applicants. Because applicants have improperly broadened the scope of claim 1 with dependent claims 18-19, in order to examine all claims, claim 1 is interpreted to be comprising which is open-ended and does not exclude the addition of these additional components as claimed. Thus, claim 1 as interpreted is not actually limited to applying a synergistic amount of only two herbicides as argued by applicants. Thus, contrary to applicant’s arguments their claims actually do not currently limit their composition in the way they argue based on the interpretation given to the claims as discussed above. As such, applicant’s arguments are not persuasive at this time because applicants claims actually do not exclude the prior art of record from reading on applicants claims as they are currently written and interpreted as discussed above because the method cannot consist of applying only two herbicides as argued by applicants and then add an additional composition comprising additional active agent to the mixture to form a composition which is applied for the reasons which are discussed above in the revised grounds of rejection.
Applicants then further argue that Kraus does not teach monocot selectivity of the method wherein the claimed two herbicides are present in a synergistic amount. The examiner respectfully disagrees given the claim interpretation explained above because Kraus teaches applying the same herbicides, napropamide D/M with clomazone or S-metolachlor, etc. and cinmethylin which can be in synergistic combinations with each other as are instantly claimed to the same locus which are instantly claimed, for controlling weeds within cereal crops, specifically wheat (wherein wheat is planted two times a year, e.g. spring or winter wheat, both of which are readily envisioned and as such clearly includes and reads on the claimed winter wheat) as is discussed above. Specifically, because Kraus teaches that their combinations of napropamide D/M and cinmethylin can be synergistic and wherein these synergistic combinations can comprise the claimed second herbicides as herbicide C, it would be obvious to optimize the amounts/ratios of napropamide-D/napropamide-M, cinmethylin, and the claimed second herbicides, e.g. clomazone, S-metolachlor, etc. as claimed in the combinations of Kraus to provide synergistic amounts of all three herbicides (which would read on the claimed synergistic amounts of the two herbicides instantly claimed) because when the combinations of napropamide-D/napropamide-M and cinmethylin are synergistic as taught by Kraus it would be obvious to add synergistic amounts of clomazone and S-metolachlor, etc. to the combination to maintain the synergy of the combination as it is known in the art/routine for one of ordinary skill to optimize the concentrations of known effective herbicides in order to form the most effective synergistic combination especially when the prior art actually teaches that these combinations can exhibit synergy. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Further, as Kraus teaches wherein their combinations can be synergistic which would include the claimed second herbicides, e.g. clomazone or S-metolachlor, etc. as dicussed above and because Kraus teaches the claimed active step of applying the same herbicides to the same locus the application of the synergistic combinations of Kraus via the claimed application steps which are taught by Kraus would lead to selective control of a monocot weed at a locus for growing a cereal crop as claimed because this is result effective of applicants claimed applying step which is taught by the combined prior art as discussed above. Further, “The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.” Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). Thus, whether or not the combined references together teach that their combination selectively control monocot weeds in wheat, the combined prior art is achieving this function/intended use of the method or not it was recognized by Kraus and the other prior art references because this is result effective of the claimed applying step when the claimed synergistic combination which is obviously taught by Kraus as discussed above is applied in/with crops of wheat as is also taught by Kraus (and the combined references).
Thus, at this time applicant’s arguments are not persuasive since applicants claims do not actually exclude cinmethylin for the reasons discussed above and herein.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the 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, as evidenced by the references, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Erin E Hirt whose telephone number is (571)270-1077. The examiner can normally be reached 10:30-7:30 ET M-F.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue X 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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ERIN E HIRT/Primary Examiner, Art Unit 1616