DETAILED ACTION
Previous Rejections
Applicant’s arguments, filed August 12, 2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Status
Claims 2 – 6, 8, 11, 13, 14, and 17 are cancelled.
Claims 10, 12, 15, 16, and 18 – 20 are withdrawn.
Claims 1, 7, and 9 are examined here-in.
Claim Rejections - 35 USC § 112 (New, Necessitated by Amendment)
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.
Claims 1, 7, and 9 are rejected under 35 U.S.C. 112(a) as failing to comply with the written description requirement. The claims contain 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, at the time the application was filed, had possession of the claimed invention.
Claims 1, 7, and 9 introduce new matter as the claims recite the limitation: "the at least one other herbicide is present in an amount in the range from 12 g/L to 60 g/L”. There is no support in the specification for this limitation. The limitation of: " the at least one other herbicide is present in an amount in the range from 12 g/L to 60 g/L" was not described in the specification as filed, and person skilled in the art would not recognize in the applicant' s disclosure a description of the invention as presently claimed.
The specification discloses the “other” herbicide is applied at a dose ranging from 12 g a.i. / ha to 60 g a.i. / ha (Tables 1 – 8) with an application volume of 300 L/ha (page 37) which converts to 0.040g/L to 0.2 g/L.
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but does not describe the instantly claimed limitation of 12 to 60 g/L. There is no guidance in the specification to select 12 to 60 g/L as an application dosage range for the other pesticide, with the exception of example 5 which has carfentrazone in an amount of 20 g/L (page 46). Although example 5 has carfentrazone in an amount of 20 g/L, there is no indication or support for a range of 12 to 60 g/L as claimed.
According to MPEP 2163.06: “Applicant should therefore specifically point out the support for any amendments made to the disclosure.” Applicant has directed the Examiner to page 31 and Tables 1 and 4, however, as discussed above, these tables show 12 g a.i. / ha to 60 g a.i. / ha which converts to 0.04 to 0.2 g/L. Therefore, it is the Examiner' s position that the disclosure does not reasonably convey that the inventor had possession of the subject matter of the amendment at the time of filing of the instant application.
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 non-obviousness.
Claims 1, 7, and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Nevill (US 2002/0004457 A1, of record).
Nevill discloses the combination of clethodim with carfentrazone-ethyl as well as the combination of clethodim with pyraflufen-ethyl (paragraphs 0049, 0051, 0053, 0055, 0057). Furthermore, Nevill teaches that the combination of clethodim with carfentrazone-ethyl illustrates synergistic activity when applied to sugar beets, soya, rapeseed, cotton, and sunflowers (paragraphs 0048, 0050, 0052, 0054, 0056). Nevill also teaches that the herbicidal combination can be included in a customary formulation with a carrier compound (paragraphs 0074-0076).
Nevill teaches that the active compound mixture can be applied at a rate of 1 to 5000 g/ha (paragraphs 0064, 0160).
Claims 1, 7, and 9 are rendered prima facie obvious over the teachings of Nevill because it is prima facie obvious to combine prior art elements according to known methods in order to yield predictable results (MPEP 2143(I)(a)). In the instant case, all the claimed elements (e.g. clethodim, carfentrazone-ethyl, pyraflufen-ethyl, carrier compound) were known in the prior art (e.g. herbicidal compositions) and one skilled in the art could have combined the elements as claimed by known methods to with no change in their respective function with the combination yielding nothing more than predictable results to one of ordinary skill in the art. A person of ordinary skill in the art would have been motivated to use the combinations of clethodim with carfentrazone-ethyl or clethodim with pyraflufen-ethyl because Nevill teaches the combinations have synergistic activity (paragraphs 0048, 0050, 0052, 0054, 0056).
Nevill’s teachings of clethodim with carfentrazone-ethyl and clethodim with pyraflufen-ethyl reads on instant claims 1 and 7. Nevill’s teachings of carfentrazone-ethyl and clethodim with pyraflufen-ethyl for herbicidal use appears to be capable of meeting the intended use limitation of controlling weeds and undesirable vegetation from non-agricultural land, amenities, orchards, vines, fruit trees, and post-harvest crop lands because the action of controlling weeds would be the same regardless of the location of the weed. According to MPEP 2111.02(ii), “to satisfy an intended use limitation which is limiting, a prior art structure which is capable of performing the intended use as recited in the preamble meets the claim”. See In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997).
Although Nevill does not explicitly teach the amounts of 50 to 500 g/L clethodim and 12 to 60 g/L other herbicide, differences in concentration do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical according to MPEP 2144.05(ii)(a). The ingredients taught by Nevill (i.e. a combination of clethodim and other herbicide) are known ingredients in the art of herbicidal compositions. The properties of the ingredients taught by Nevill are also well-known, as well as the synergy resulting from their combination (paragraphs 0048, 0050, 0052, 0054, 0056), thus a person of ordinary skill in the art seeking to take advantage of these properties would recognize the amount of these ingredients as a result-effective variable. As such, the presence of these result-effective variables would be motivation for a person of ordinary skill in the art to optimize the amounts of these ingredients to obtain the desired result, which is prima facie obvious according to MPEP 2144.05(ii)(b). With consideration to Nevill’s teaching that the active compound mixture can be applied at a rate of 1 to 5000 g/ha (paragraphs 0064, 0160) a person of ordinary skill in the art would have the expertise to optimize an application rate in g/L that reads on the claimed amounts of 50 to 500 g/L clethodim and 12 to 60 g/L other herbicide as recited in claims 1 and 7.
Nevill’s teaching that the herbicidal combinations can be formulated with one or more carrier compounds (paragraphs 0074-0076) reads on instant claim 9.
Examiner’s Reply to Attorney Arguments Dated August 12, 2026
Applicant argues that Nevill does not teach or suggest the amount of actives in the combination recited in amended claims 1 and 7. This argument is not persuasive, because as discussed in the body of the rejection above, a person of ordinary skill in the art would recognize the relative amounts of herbicides as result-effective variables and would be motivated to optimize the amounts of these ingredients to obtain the desired results. Furthermore, with consideration to Nevill’s teaching that the active compound mixture can be applied at a rate of 1 to 5000 g/ha (paragraphs 0064, 0160) a person of ordinary skill in the art would have a starting point for experimentation and , in combination with their expertise, a reasonable expectation of success to optimize an application rate in g/L that reads on the claimed amounts of 50 to 500 g/L clethodim and 12 to 60 g/L other herbicide as recited in claims 1 and 7.
Conclusion
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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Toriana N. Vigil whose telephone number is (571)270-7549. The examiner can normally be reached Monday - Friday 9:00 a.m. - 5:00 p.m. EST.
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/TORIANA N. VIGIL/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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