DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Status of Claims
The preliminary amendment, filed on 16 October 2025, is acknowledged.
Claims 1-30 are cancelled.
New claims 31-52 are entered.
Election/Restriction
REQUIREMENT FOR UNITY OF INVENTION
As provided in 37 CFR 1.475(a), a national stage application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (“requirement of unity of invention”). Where a group of inventions is claimed in a national stage application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art.
The determination whether a group of inventions is so linked as to form a single general inventive concept shall be made without regard to whether the inventions are claimed in separate claims or as alternatives within a single claim. See 37 CFR 1.475(e).
Election of Species
This application contains claims directed to more than one species of the generic invention. These species are deemed to lack unity of invention because they are not so linked as to form a single general inventive concept under PCT Rule 13.1.
The species are as follows: the composition(s) combined with the sulfentrazone composition in the form of a microemulsion.
Applicant is required, in reply to this action, to elect a single species to which the claims shall be restricted if no generic claim is finally held to be allowable.
Applicant is required to elect:
the specific composition(s) combined with the sulfentrazone composition in the form of a microemulsion (e.g., glyphosate composition 11% w/v ME as in claim 39).
The reply must also identify the claims readable on the elected species, including any claims subsequently added. An argument that a claim is allowable or that all claims are generic is considered non-responsive unless accompanied by an election.
Upon the allowance of a generic claim, applicant will be entitled to consideration of claims to additional species which are written in dependent form or otherwise require all the limitations of an allowed generic claim. Currently, the following claim is generic: claim 31.
The groups of inventions listed above do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons:
The groups lack unity of invention because, even though the inventions of these groups require the technical feature of a microemulsion composition comprising 5-15% w/v sulfentrazone, 46-50% w/v dipolar aprotic organic solvent, 0-4% w/v polar solvent, 20-41% wetting agents, 0-6% w/v coadjuvant, 0-3.5% w/v non-ionic surfactant, 0-17.5% w/v adjuvant, and 0-2% dispersing agent mixed with another composition(s), this technical feature is not a special technical feature as it does not make a contribution over the prior art in view of Jiangsu Agrochem Lab Co Ltd. (Chinese Patent Application Publication No. CN 104365612 A, published on 25 February 2015, provided by Applicant in the IDS filed on 30 January 2023, references to English translation) as evidenced by Zambiazi et al. (B. ceppa, curitiba, 2007, 25 (1), 111.) in view of Warrington et al. (European Patent No. EP 1317177 B1, published on 25 August 2004), Heinrich et al. (U.S. Patent No. 4,973,352 A, published on 27 November 1990), Jiangsu Rotam Chemical Co Ltd. (Chinese Patent Application Publication No. CN 102960357 A, published on 13 March 2013, provided by Applicant in the IDS filed on 30 January 2023, references to English translation), Blumel (U.S. Patent Application Publication No. US 2014/0005052A1, published on 2 January 2014), and Vidal et al. (U.S. Patent Application Publication No. US 2015/0208645 A1, published on 30 July 2015) (vide infra).
Since Applicant’s invention does not contribute a special technical feature when viewed over the prior art, they do not have a single general inventive concept, and so lack unity of invention.
Response to Election/Restriction
Applicant’s cancellation of claims 1-30 has rendered moot the election requirement mailed on 19 May 2025.
A telephone call was made to Jeffrey Goehring on 30 December 2025, and 8 January 2026, to request an oral election to the above restriction requirement, but did not result in an election being made. A notice of non-responsiveness was sent to the Applicant on 16 January 2026, stating that the newly submitted claims rendered moot the requirement for election of the dipolar aprotic organic solvent, the polar solvent, the one or more wetting agents, the coadjuvant, the non-ionic surfactant, the adjuvant, and the one or more dispersing agents. However, as detailed above, newly submitted claims 39-52 introduced 14 distinct herbicidal combination compositions and restriction to one invention is required.
Applicant's election with traverse of the combination of 10% w/v sulfentrazone microemulsion and 30% w/v 2,4 D microemulsion in a binary mixture of 2.5:1.0 v/v (claim 41) in the reply filed on 12 June 2026, is acknowledged. The traversal is on the ground that claims 39-52 all incorporate the “same special technical feature” (final para., pg. 2 of the response filed on 12 June 2026) and because examination of all combinations would “impose no serious additional search or examination burden”. This is not found persuasive because, regarding the first argument, the claims do not share the same special technical feature (vide infra), and regarding the second argument, a serious search or examination burden is not relevant to restriction/election requirements for national stage applications filed under 35 U.S.C. 371 (the instant application) but to applications filed under 35 U.S.C. 111. See MPEP § 803 and 1893.03(d).
The requirement is still deemed proper and is therefore made FINAL.
Claims 31-52 are pending in the instant Office Action.
Claims 39-40 and 42-52 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 12 June 2026.
Claims 31-38 and 41 are under consideration in the instant Office Action, to the extent of the elected combination of a sulfentrazone composition in the form of a microemulsion according to claim 31 with sulfentrazone present in an amount of 10% w/v and 2,4 D composition 30% w/v ME.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy of Argentinian Application No. AR P20200102138, filed on 30 July 2020, has been received.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 30 January 2023, was filed in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Specification
The abstract of the disclosure is objected to because it exceeds 150 words in length. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Objections
Claims 31-32, 37-38, and 41 are objected to because of the following informalities:
Claim 31 recites “wetting agents selected from polyethylene nonyl phenol” in lines 4-5, “an coadjuvant” in line 6, “and a nonionic surfactant” in the middle of a list in line 7, “adjuvant which is selected” in line 9, and “dispersing agents” in line 10. The phrases should recite “a wetting agent selected from polyethylene nonyl phenol”, “a coadjuvant”, “a nonionic surfactant”, “an adjuvant which is selected”, and “a dispersing agent”, respectively (bold added for emphasis).
Claim 32 recites “copolymer, 3.5% w/v…” at the end of a list in line 6. The word “and” should be included so the phrase recites “copolymer, and 3.5% w/v…” (bold added for emphasis).
Claim 38 recites “whereint sulfentrazone composition” in line 2. The phrase should recite “wherein the sulfentrazone composition” (bold added for emphasis).
Claims 37-38 and 41 recite “ME”, “SL”, and “EC”. Applicant is advised that the first appearance of an abbreviation in the claims should be preceded by the full term. These abbreviations are interpreted to mean microemulsion, soluble concentrate, and emulsifiable concentrate based on pg. 34 of the instant spec. and in response to this Office Action Applicant should amend the first appearance of each to write the full term.
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.
Claim 41 is 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 41 recites the limitation "sulfentrazone composition 10% w/v ME" in lines 2-3. There is insufficient antecedent basis for this limitation in the claim because claims 31 and 37-38, from which claim 41 depends, do not recite a sulfentrazone composition 10% w/v ME but instead recite a sulfentrazone composition in the form of a microemulsion comprising 5-15% w/v sulfentrazone. Applicant may overcome this rejection by amending claim 41 to recite “wherein sulfentrazone is present in an amount of 10% w/v and the sulfentrazone composition in the form of a microemulsion is combined with 2,4 D composition 30% w/v ME in a binary mixture in a ratio of 2.5:1.0 v/v”.
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 36, 38, and 41 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.
Claim 36 recites “1% w/v soybean oil fatty acid methyl ester” in line 5. Claim 31, upon which claim 36 depends, recites 5-6% w/v soybean oil fatty acid methyl ester, and claim 36 therefore fails to include all the limitations of the claim upon which it depends.
Claim 38 recites a sulfentrazone composition combined with “glyphosate 11% ME, and/or glyphosate potassium salt 66.2% w/v SL and/or…” (bold added for emphasis). Claim 37, from which claim 38 depends, recites the sulfentrazone composition combined with compositions of glyphosate, glyphosate potassium salt, 2,4 D, 2,4 D dimethyl amine salt, acetochlor, metribuzin, clethodim, imazethapyr, and paraquat. By reciting the different species in the alternative, claim 38 fails to include all the limitations of the claim upon which it depends.
Claim 41 recites a composition comprising sulfentrazone and 2,4 D. Claim 37, from which claim 41 depends, recites the sulfentrazone composition combined with compositions of glyphosate, glyphosate potassium salt, 2,4 D, 2,4 D dimethyl amine salt, acetochlor, metribuzin, clethodim, imazethapyr, and paraquat. By reciting the different species in the alternative, claim 41 fails to include all the limitations of the claims upon which it depends.
Applicant may cancel the claims, amend the claims to place the claims in proper dependent form (e.g., amend claim 37 to recite “imazethapyr and/or paraquat” in the penultimate line), rewrite the claims in independent form, or present a sufficient showing that the dependent claims complies with the statutory requirements. For the purpose of examination, claim 37 is interpreted as reciting “imazethapyr and/or paraquat” in the penultimate line.
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 31-36 are rejected under 35 U.S.C. 103 as being unpatentable over Jiangsu Agrochem Lab Co Ltd. (Chinese Patent Application Publication No. CN 104365612 A, published on 25 February 2015, provided by Applicant in the IDS filed on 30 January 2023, references to English translation, hereafter referred to as Jiangsu) as evidenced by Zambiazi et al. (B. ceppa, curitiba, 2007, 25 (1), 111.) in view of Warrington et al. (European Patent No. EP 1317177 B1, published on 25 August 2004, hereafter referred to as Warrington), Heinrich et al. (U.S. Patent No. 4,973,352 A, published on 27 November 1990, hereafter referred to as Heinrich), Jiangsu Rotam Chemical Co Ltd. (Chinese Patent Application Publication No. CN 102960357 A, published on 13 March 2013, provided by Applicant in the IDS filed on 30 January 2023, references to English translation, hereafter referred to as JRCC), Blumel (U.S. Patent Application Publication No. US 2014/0005052 A1, published on 2 January 2014), and Vidal et al. (U.S. Patent Application Publication No. US 2015/0208645 A1, published on 30 July 2015, hereafter referred to as Vidal).
Jiangsu teaches a weeding composition for controlling weeds in peanut fields comprising sulfentrazone and clethodim which may be in various forms, including a microemulsion (Abstract). In one embodiment, sulfentrazone is taught to be present in an amount from 1-50% w/w, specifically 10% in embodiments 3, 8, and 13 and 12.5% in embodiment 12, and clethodim is taught to be present in an amount from 0.5-50% w/w in claims 7-9. The composition is also taught to comprise one or more wetting agents, dispersants, thickeners, defoamers, emulsifiers, solid and/or liquid carriers, and disintegrants (claims 7-9). In some embodiments, the emulsifier is present from 0.1-10% w/w, the wetting agent is present from 0.1-10% w/w, the dispersant is present from 0.1-10% w/w, the thickener is present from 0.1-10% w/w, the defoamer present from 0-5% w/w, and the liquid carrier present from 10-90% w/w (pg. 2, lines 38-45).
Jiangsu teaches the wetting agent may be an alkylphenol polyoxyethylene (pg. 2, penultimate para.), the emulsifier may be castor oil polyoxyethylene ether, and the liquid carrier may be an N-alkyl pyrrolidone, a fatty acid ester such as methyl oleate, or mixtures of the two (pg. 3., para. 7). Oleic acid is one of the primary fatty acids in soybean oil, as evidenced by Zambiazi et al. (B. ceppa, curitiba, 2007, 25 (1), 111.), therefore methyl oleate is considered a “soybean oil fatty acid methyl ester” as recited in instant claim 31. These species and genera result in 0.1-10% w/w of an alkylphenol polyoxyethylene, which contains the 2-2.15% polyethylene nonyl phenol recited in instant claim 31 as 20-21.5% w/v of a 10.06% w/w solution, 0.1-10% w/w of the castor oil polyoxyethylene ether, which encompasses the range recited in instant claim 31, and a mixture of an N-alkyl pyrrolidone and soybean oil fatty acid methyl ester accounting for 10-90% encompasses the ranges for each component recited in instant claim 31. Finally, Jiangsu teaches their composition interacting with water during preparation and application, but does not teach an appropriate concentration of water in their composition (Embodiments 6-7 and Application Example 1).
Jiangsu does not teach the alkyl group in the alkylphenol polyoxyethylene to be C9 (nonyl), the composition to comprise a polymethylmethacrylate (PMMA)-polyethylene glycol (PEG) graft copolymer, the specific ethoxylated castor oil, the N-alkyl pyrrolidone to be N-methyl pyrrolidone, the composition to comprise water, nor the composition to comprise an ethoxylated fatty tallow alkyl amine. These deficiencies are offset by the teachings of Warrington, Heinrich, JRCC, Blumel, and Vidal.
Warrington teaches aqueous pesticidal compositions in the form of suspension concentrates (para. [0001-0002]). The compositions comprise, among other components, 5-40% of one or more pesticides, 2.5-20% non-ionic alkoxylate surfactant, and 0.1-5% non-ionic polymethyl methacrylate-polyethylene oxide graft copolymer (para. [0007] and claim 1). Warrington teaches that alkoxylate surfactants are preferred because of their ability to enhance biological effects and that suitable examples of such an alkoxylate are ethoxylates of castor oil and nonyl phenol (para. [0017]).
Heinrich teaches herbicidal aqueous microemulsions comprising, among other ingredients, ethoxylated castor oil as an emulsifier (Abstract and claim 1). Ethoxylates of castor oil containing 20-60 ethylene oxide units are taught to be appropriate for herbicidal microemulsions (column 3, lines 6-8). One particular emulsifier appropriate for microemulsions, which is interpreted as being equivalent to the surfactant recited in the instant claims as evidenced by para. [0045] of the instant spec., is Emulsogen® 360 (column 3, lines 8-10).
JRCC teaches an herbicidal composition comprising the herbicides ametryn, sulfentrazone, and a sulfonylurea herbicide which may be pyrisulfuron-methyl, flazasulfuron, and sulfasulfuron-methyl (Abstract, pg. 4, Summary of the Invention, para. 1, and claims 1 and 6). The compositions are taught to be capable of being formulated in various forms, including microemulsions (pg. 4, Summary of the Invention, para. 12), and the combination of different herbicides are taught to display “obvious synergistic effect[s]” (pg. 5, para. 5 and 8-9). The compositions are further taught to comprise a liquid carrier, which in some embodiments may be water and/or an amide (pg. 6, para. 2). In embodiment 17, JRCC teaches a composition which comprises 15% sulfentrazone, 5% ethoxylated castor oil, and 46% 1-methylpyrrolidone, which is interpreted as being equivalent to N-methylpyrrolidone as recited in the instant claims.
Blumel teaches phytosanitary compositions, which are interpreted as equivalent to herbicidal compositions, in the form of microemulsions (Abstract). The compositions are taught to comprise one or more active ingredients in their acid form, which are herbicides, insecticides, fungicides, and/or biocides, one or more non-ionic surfactants, one or more anionic surfactants, an organic solvent, and water (para. [0002] and claim 1). Blumel teaches that the acid form of herbicides, rather than their esterified products or their salts, are more active/effective, but requires one or more appropriate surfactants to maintain solubility (para. [0022], [0025], and [0027]). One of the non-ionic surfactants that is taught to be suitable for this purpose is an ethoxylated fatty amine, which is interpreted as being equivalent to the ethoxylated fatty tallow alkyl amine recited in the instant claims (para. [0027]). The one or more non-ionic surfactants are taught to be present in an amount from 5-70% (claim 1). In a particular embodiment, the ethoxylated fatty amine is Genamin® T 150, which is a fatty amine ethoxylated with 15 moles of ethylene oxide, as evidence by the final para. of pg. 9 of the instant specification (Example 1).
Vidal teaches phytosanitary compositions, which are considered equivalent to herbicidal compositions, comprising active phytosanitary products and an ether-amide compound (Abstract). Phytosanitary products, which Vidal defines as including insecticides, herbicides, and fungicides, are taught to be difficult to formulate in compositions with high concentrations of active products with good stability (para. 0002-0008]). One form taught by Vidal to be capable of meeting the goal of stability with relatively high concentrations of 10-80% w/w active products are microemulsions (para. 0032-0034] and claim 9). Vidal teaches that concentrated phytosanitary compositions “preferably [do] not comprise significant amounts of water”, with a preferred concentration being less than 10% w/w such as 0-10% w/w (para. [0106-0113]).
Guidelines on the obviousness of similar and overlapping ranges, amounts, and proportions are provided in MPEP § 2144.05. With respect to claimed ranges which “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). These guidelines apply to the ranges of sulfentrazone, emulsifiers, wetting agents, dispersants, thickeners, liquid carriers, and water above – in each case, the range taught by Jiangsu or Vidal significantly overlaps with or encompasses the range or value recited in instant claims 31-36 and therefore renders them prima facie obvious.
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, to combine the teachings of Warrington, Heinrich, JRCC, Blumel, and Vidal with the invention of Jiangsu to arrive at the invention of instant claims 31-36 because combining prior art elements from similar inventions to impart known benefits produces predictable results. Jiangsu teaches a composition comprising sulfentrazone in an amount from 1-50% w/w, specifically 10% in embodiments 3, 8, and 13, an emulsifier which may be castor oil polyoxyethylene ether in an amount from 0.1-10% w/w, a wetting agent which may be an alkylphenol polyoxyethylene present from 0.1-10% w/w, a dispersant present from 0.1-10% w/w, a thickener present from 0.1-10% w/w, a defoamer present from 0-5% w/w, and a liquid carrier which may be a mixture of an N-alkyl pyrrolidone and a fatty acid ester such as methyl oleate, which is equivalent to a soybean oil fatty acid methyl ester, present from 10-90% w/w (pg. 2, lines 38-45).
In view of the teachings of Warrington, a person of ordinary skill in the art would be motivated to select a nonyl alkyl group in the alkylphenol polyoxyethylene because Warrington teaches the species to enhance biological effects of pesticides, which the ordinary artisan would recognize as desirable in a pesticidal composition, in amounts that significantly overlap with the quantities of wetting agent taught by Jiangsu. The person of ordinary skill would further be motivated by the teachings of Warrington to include a non-ionic polymethyl methacrylate-polyethylene oxide graft copolymer in the composition of Jiangsu because Warrington teaches the species to produce an acceptable composition viscosity, which the ordinary artisan would desire in their pesticidal composition, using small quantities which fall within the ranges taught by Jiangsu. One of ordinary skill would also recognize that the ranges taught by Warrington and Jiangsu significantly overlap and would have a reasonable expectation of success in using the species.
In view of the teachings of Heinrich, a person of ordinary skill would be motivated to select the specific ethoxylate of castor oil containing 20-60 ethylene oxide units such as Emulsogen® 360 because while Jiangsu teaches that castor oil polyoxyethylene ether is a suitable emulsifier for use in their composition, they do not teach a specific species. Heinrich teaches a specific ethoxylate of castor oil that is suitable for use in herbicidal compositions which would provide the ordinary artisan missing information needed to complete their invention.
In view of the teachings of JRCC, one of ordinary skill would be motivated to select the specific N-alkyl pyrrolidone to be N-methyl pyrrolidone because while Jiangsu teaches N-alkyl pyrrolidone to be a suitable liquid carrier for use in their composition, they do not teach a specific species. JRCC teaches the specific species N-methyl pyrrolidone to be suitable for a composition in the form of a microemulsion that comprises sulfentrazone and ethoxylated castor oil in amounts that fall within the ranges taught by Jiangsu and further teaches that N-methyl pyrrolidone can be used in an amount that falls within the range taught by Jiangsu. The teachings of JRCC provide missing information that an ordinary artisan would need to complete their invention, which would motivate the ordinary artisan to combine the teachings of JRCC with the invention of Jiangsu.
In view of the teachings of Blumel, a person of ordinary skill would be motivated to use an ethoxylated fatty amine such as Genamin® T 150 in the composition of Jiangsu because Blumel teaches the species is needed to maintain solubility of microemulsion pesticidal composition. In addition, Blumel teaches the ethoxylated fatty amine to be used in a range that encompasses the ranges emulsifiers and dispersants taught by Jiangsu. The person of ordinary skill would desire their microemulsion pesticidal composition maintain pesticide solubility and, because of the overlapping ranges, would have a reasonable expectation of success in using the species in the invention of Jiangsu.
Finally, in view of the teachings of Vidal, one of ordinary skill would be motivated to use water in an amount of 0-10% w/w in the invention of Jiangsu because while Jiangsu teaches their composition interacting with water during application, they are silent on the appropriate concentration of water in their composition. Vidal teaches that in an herbicidal composition that may be formulated as a microemulsion, relatively high concentrations of herbicides can be made stable by having low amounts of water, preferably 0-10% w/w. The teachings of Vidal provide information missing from the invention of Jiangsu and the ordinary artisan would be motivated to combine the teachings of Vidal with the invention of Jiangsu to complete their invention. As a result, there is a reasonable expectation of success in arriving at the invention of instant claims 31-36 in view of the teachings of Jiangsu, Warrington, Heinrich, JRCC, Blumel, and Vidal.
Claims 37-38 and 41 are rejected under 35 U.S.C. 103 as being unpatentable over Jiangsu (Chinese Patent Application Publication No. CN 104365612 A, published on 25 February 2015, provided by Applicant in the IDS filed on 30 January 2023, references to English translation) as evidenced by Zambiazi et al. (B. ceppa, curitiba, 2007, 25 (1), 111.) in view of Warrington (European Patent No. EP 1317177 B1, published on 25 August 2004), Heinrich (U.S. Patent No. 4,973,352 A, published on 27 November 1990), JRCC (Chinese Patent Application Publication No. CN 102960357 A, published on 13 March 2013, provided by Applicant in the IDS filed on 30 January 2023, references to English translation), Blumel (U.S. Patent Application Publication No. US 2014/0005052 A1, published on 2 January 2014), and Vidal (U.S. Patent Application Publication No. US 2015/0208645 A1, published on 30 July 2015) as applied to claims 31-36 above, and further in view of Damalas (Int. J. Agri. Biol. 2004, 6 (1), 209.) and Junction® - Corteva Agriscience (accessed via Wayback Machine, site published 23 September 2019, accessed on 5 August 2026, hereafter referred to as Corteva).
Jiangsu, Warrington, Heinrich, JRCC, and Blumel teach the above, and particularly relevant to claims 37-38 and 41 Jiangsu teaches that in the field of herbicides, two or more herbicides can be combined to expand the spectrum of weeds treated but that the herbicides must be specifically selected to achieve synergistic rather than antagonistic effects (pg. 2, lines 26-27).
Jiangsu, Warrington, Heinrich, JRCC, and Blumel do not teach the sulfentrazone composition in the form of a microemulsion above to be combined with a 2,4 D 30% w/v ME composition nor the ratio of the combination. These deficiencies are offset by the teachings of Damalas and Corteva.
Damalas teaches an overview of herbicide tank mixtures, a mixture of two or more herbicides in one container, to broaden the spectrum of weed control, improve efficacy of the combined herbicides, reduce herbicide usage, and delay herbicide resistance development (Abstract). The practice of making tank mixtures is taught to be “very common” and to provide many advantages over using single herbicides, but selection of herbicides and the quantities to be combined are vital and Damalas teaches that tank mixtures have behaviors that are “difficult to predict” (pg. 209, Introduction). The interactions between two or more herbicides in a tank mixture are capable of being additive, synergistic, or antagonistic and Damalas depicts in Fig. 1 a schematic representation of varying dosages of two different herbicides to achieve an additive or synergistic effect, which produce desirable results, or an antagonistic effect, which produces an undesirable effect (pg. 209, right col., final para. – pg. 210, right col., para. 1).
Corteva teaches a microemulsion herbicide named Junction® which comprises 2,4-D in a 300 g/L acid equivalent, which is equivalent to 30% w/v (pg. 1-2).
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, to combine the teachings of Damalas and Corteva with the invention rendered obvious by the teachings of Jiangsu, Warrington, Heinrich, JRCC, Blumel, and Vidal because the combination of prior art elements according to known methods to produce a known benefit yields predictable results. The teachings of Jiangsu, Warrington, Heinrich, JRCC, Blumel, and Vidal rendered obvious a pesticidal composition in the form of a microemulsion comprising sulfentrazone, N-methylpyrrolidone, water, polyethylene nonyl phenol, methyl oleate, castor oil ethoxylate (36 EO), fatty tallow alkyl amine ethoxylate (15 EO), and a PMMA-PEG graft copolymer in amounts that significantly overlap with or encompass the ranges recited in instant claim 31 and encompass the values recited in instant claims 32-36.
In view of the teachings of Damalas, a person of ordinary skill would be motivated to mix the sulfentrazone composition rendered obvious above with another herbicidal composition to produce a tank mixture because Damalas teaches tank mixtures of two or more herbicides to have advantages over single herbicidal compositions. The ordinary artisan would desire the advantages taught by Damalas in a composition intended to treat pesticides and would therefore desire a mixture with the obvious sulfentrazone composition and another herbicidal composition.
The Junction® composition taught by Corteva was commercially available at the time of filing and combining Junction®, which is a microemulsion comprising the equivalent of 30% w/v 2,4 D, with the composition rendered obvious above would be obvious to one of ordinary skill in the art. “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose" In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). See MPEP § 2144.06.I.
Damalas and Corteva do not teach the specific ratio of 2.5:1.0 in combining herbicidal compositions. However, Damalas provides a guideline for combining two herbicidal compositions in a tank mixture to achieve positive results and, in the absence of evidence showing that the claimed ratio is critical, an ordinary artisan would arrive at the claimed ratio through routine optimization. "[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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05.II.A. As a result, there is a reasonable expectation of success in arriving at the invention of instant claims 37-38 and 41 in view of the teachings of Jiangsu, Warrington, Heinrich, JRCC, Blumel, and Vidal and further in view of the teachings of Damalas and Corteva.
Conclusion
No claims are allowed.
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/S.J.S./
Examiner, Art Unit 1619
/TIGABU KASSA/Primary Examiner, Art Unit 1619
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