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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 07/13/2026 has been entered.
Status of Claims
Amendment filed on 07/13/2026 is acknowledged.
Claims 12-16 were withdrawn without traverse, and Claims 13-16 remain cancelled. Claims 22-23 and 25 are now cancelled.
Claims 1-5, 8, 10, 17-21 are amended. Claims 27 and 28 are new.
Claims 1-11, 17-21, 24, and 26-28 are being examined on the merits herein.
Priority
This instant application 18023204, filed on 02/24/2023, is a 371 of PCT/AU2021050981, filed on 08/26/2021, which claims foreign priority of Australia 2020903066, filed on 08/27/2020.
Claim Objections
Claim 17 is objected to because of the following informalities:
Claim 17 recites “alcohol aloxylate”, which has a typo in the word “alkoxylate”.
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 1-3, 6-11, 17-19, 24 and 16-28 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.
Claims 1 and 17 each recites “ a C6-C12 fatty acid in an amount ranging from about 1 wt.% to about 60 wt.% that is in a protonated carboxylic acid form”. It is unclear what calculation basis the percentage calculation is based upon: whether it is based on the total amount of fatty acid, or based on the total amount of the herbicide composition. Further, it is unclear whether this percentage amount defines the percentage portion as protonated carboxylic acid form out of the C6-C12 fatty acid, or it is meant to define that all of the C6-C12 fatty acid is in a protonated carboxylic acid form and the percentage amount represents total C6-C12 fatty acid amount out of the total weight of the composition. The claims’ metes and bounds are indefinite. For the purpose of compact prosecution, the claims are interpreted as “a C6-C12 fatty acid contains ranging from about 1 wt% to about 60 wt% a protonated carboxylic acid form”.
Claims 2-3, 6-11, 18-19, 24 and 26-28 are rejected accordingly, because they are dependent claims or claim 1 or claim 17, and they do not clarify the issues addressed above regarding claims 1 and 17.
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.
Claim 10 is 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 10 recites “the hydrophobic liquid comprises one or more terpenes”, while claim 1, which claim 10 depends upon, recites “a hydrophobic liquid that comprises a terpene”. The claim 10 scope rather broadens claim 1 scope from “a terpene” to “one or more terpenes”, and therefore it fails to further limit the subject matter. The claim is interpreted as “the hydrophobic liquid comprises the terpene”.
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.
Claims 1-8, 10-11, 17-21, and 26-28 are rejected under 35 U.S.C. 103 as being unpatentable over Wu et al. (US20120122688, 05/17/2012, IDS of 08/04/2023), as evidenced by Wikipedia (palm kernel oil, 07/29/2026, PTO-892), in view of Parrish et al. (US20050170967, 08/04/2005) and Crosby et al. (US20140018240, 01/16/2014).
Wu throughout the reference teaches agricultural compositions comprising pesticide, e.g., water-insoluble pesticide (e.g., [0026]; [0031]; [0052]) which can be herbicide (e.g., [0048]), and an incompletely hydrated water soluble polymer suspended in a liquid medium (e.g., Abstract; Claim 1).
Regarding instant claims 1, 7-8, 17, and 27-28, Wu discloses herbicide compositions, which can be in the form of an emulsion, microemulsion, or a suspoemulsion (e.g., Claim 14; [0213]), which can comprise water and water immiscible organic liquid (e.g., Claim 15) (corresponding to water and hydrophobic liquid in instant claims 1 and 17). Wu exemplifies a herbicide composition comprising 41.12% of water- insoluble fungicide (as hydrophobic liquid), 45.84% of water, 1.20% polyalkoxylated fatty acid ester (surfactant A), 0.4 wt% alcohol ethoxylate (surfactant C), 3.3 wt% vegetable oil (e.g., coconut oil, palm kernel oil, cotton seed oil, rapeseed oil, sesame seed oil, soybean oil, etc. [0041], as one hydrophobic liquid), 1.2 wt% water-soluble polysaccharide polymer (nonderivatized guar), 0.16 wt% silicone antifoam agent (as another hydrophobic liquid), 0.08% suspending agent I such as xanthan gum and 0.30% suspending agent II such as bentonite clay ((Example 3, [0254], Table IV). Wu discloses alternative suspending agents including fumed silica ([0034], [0075], [0160-0163], [0173], [0241-242], [0248-0249]; Table I, III; and Claims 7- 8, 12, 15, 19, 24). The vegetable oil species taught by Wu constitute fatty acids, for instance, palm kernel oil, as evidenced by Wikipedia (Pg. 2/4, middle Table), palm kernel oil contains approximately C12 lauric fatty acid 48.2% (corresponding to fatty acid species in instant claim 8), C10 capric acid 3.4%, C8 caprylic acid 3.3% (corresponding to fatty acid species in instant claims 1, 17 and 27-28), linoleic acid, oleic acid, stearic acid, etc., the protonated carboxylic acid including C8 caprylic acid and C10 capric acid amounts overlap with range from about 1 wt% to about 60 wt% as recited in instant claims 1 and 17.
Wu defines the term “hydration” in reference to the water soluble polymer component means association of substituent groups, typically hydrophilic substituent groups, such as hydroxyl groups, of the water soluble polymer with water molecules, such as water molecules of the aqueous medium through, for example, hydrogen bonding. The degree to which the water soluble polymer is hydrated can range from non-hydrated to completely hydrated, with degrees of partial hydration extending between the two extremes [0054]. As referred to "non-hydrated" water soluble polymer makes no significant contribution to the viscosity of the composition. In general, the non-hydrated water soluble polymer would be in the form of a discontinuous phase, for example, discrete particles, that is dispersed in a continuous phase of the liquid medium, ideally with no interaction between the hydrophilic substituents of the polymer and any water molecules present in the liquid medium [0055]. Wu indicates further that it is believed that in the case of a non-hydrated water soluble polymer, interaction among the hydrophilic substituent groups of the non-hydrated water soluble polymer dominates over interaction between the hydrophilic substituent groups of the polymer and any water molecules present in the aqueous medium, the polymer chains of the non-hydrated water soluble polymer are in a compact, folded conformation, and, in the case where the liquid medium is an aqueous medium, the non-hydrated water soluble polymer is not dissolved in the aqueous medium and remains in the form of a discontinuous phase dispersed in the continuous phase of the aqueous medium [0055]. Wu states that “non-hydrated” is referred to as “incompletely hydrated” in the composition [0058]; although the “partially-hydrated” form ([0057], corresponding to hydrogel) is also referred to as “incompletely hydrated” ([0058]). Therefore, since Wu teaches the composition comprising incompletely hydrated water soluble polymer and a pesticide (e.g., Claim 1, Abstract) wherein the pH sensitive polymers, e.g., comprising polymerized residues of acrylic acid, can present in the composition as non-hydrogel form as recited in instant claim 1.
Wu specifies that suitable rheology modifier polymers are used to thicken aqueous compositions and typically fall within three general classes, that is, alkali swellable pH-responsive polymers, hydrogen bridging rheology modifiers (e.g., natural gum like guar), and hydrophobic associative thickeners in the composition (e.g., [0174]-[0176]). Wu indicates that pH responsive polymers that swell when placed in an alkali medium and include, homopolymers and copolymers comprising units derived from ethylenically unsaturated carboxylic acid monomers such as acrylic acid, methacrylic acid (e.g., [0175]) (corresponding to pH sensitive hydrogel forming polymer, as evidenced by instant specification Pg. 18, Lines 1-14); pH adjusting agents can be included in the composition [0224]. As discussed above, Wu teaches the pH sensitive polymer in the composition is in incompletely hydrated form including non-hydrated form. Therefore, Wu teaches, implies, and/or suggests that When the pH sensitive polymer is in non-hydrated form in the composition, the composition would require acidic ranges so that the pH does not promote hydrogel formation of the pH sensitive polymer in the composition, corresponding to instant claims 1 and 17.
Wu discloses multiple surfactants including alkoxylated polyarylphenol (2.78 %) and ethoxylated alcohol (Rhodasurf 860/P, Rhodia Inc., 0.46%) in concentrated tebuconazole and copper oxychloride composition Example 4 (Table VI), of which mixture of C9-C11 and C16-C18 alcohol alkoxylate can coexist, corresponding to instant claims 7 and 17.
Regarding water in instant claims 2-5, 18-19, and 20-21, Wu indicates that the composition comprises greater than 0 to about 10% of an aqueous liquid medium comprising water (e.g., [0208]), overlapping with water amount ranging from about 0.1 wt% to about 10 wt% in instant claims 2, 4, 18, and 20. Wu exemplifies water amount in the compositions range from 45.84 % to 64.1% (Examples 1-8), overlapping with range from about 50 % to about 98% in instant claims 3, 5, 19 and 21.
Regarding alcohol alkoxylate in instant claims 4-5 and 20-21, Wu teaches alcohol alkoxylate ranges from 0.4% (Example 3, Table III) to 10% (as ethoxylated castor oil, surfactant E, Example 8, Table VIII) (overlapping with alcohol alkoxylate amount range from about 10 % to about 25 % in instant claims 4 and 20, or from about 0.5 % to about 10 % in instant claims 5 and 21).
Regarding fatty acid and hydrophobic liquid in instant claims 4-5 and 20-21, Wu also teaches that nonionic surfactants such as alkoxylated fatty acids, e.g., poly(ethylene glycol)monostearates (having C18 stearic acid), are suitable for the composition (e.g., [0186]), and such surfactant can be in an amount typically from greater than 0%, or from about 2% to about 8% or to about 6% in the composition (e.g., [0209]), or from greater than 0% to about 30% in the compositions (e.g., [0135]; [0213]), overlapping with fatty acid range from about 30 % to 60 % in instant claims 4 and 20, or about 1% to about 10% in instant claims 5 and 21. Wu teaches that in the composition comprising from greater than 0 to 10 %, or greater than or equal to about 30% of a water immiscible organic liquid (e.g., [0214-0215]) and from 0-70 % water insoluble pesticide (e.g., [0216]). As exemplified in example 6, Wu teaches vegetable oil in the composition ranging from 0.75 % (Example 5, Table VI ) to 67.7 % (Example 6, Table VII), overlapping with hydrophobic liquid amount from about 15 % to 30 % in instant claims 4 and 20, or about 0.1 % to about 10 % instant claims 5 and 21.
Regarding pH sensitive polymer in instant claims 4-5 and 20-21, Wu teaches that water soluble polymers, e.g., polyacrylamide polymer (Claims 24, 28, 32) (corresponding to pH sensitive polymer) amount can be from great than 0 to about 30% (e.g., [0211]; [0217]; Claim 23), corresponding to pH sensitive polymer from about 0.001% to about 0.01 % in instant claims 4 and 20, or 0.0002 % to about 0.001 % in instant claims 5 and 21.
Regarding fumed silica in instant claims 4-5 and 20-21, herbicide compositions example 2 includes 0.7 % fumed silica (Table III), corresponding to fumed silica amount from about 0.001 % to 0.01 % in instant claims 4 and 20, or from about 0.0003 % to about 0.001 % in instant claims 5 and 21.
Regarding instant claim 6, Wu exemplifies in example 3 a composition comprising insoluble fungicide (as hydrophobic liquid), 3.3 wt% vegetable/rapeseed oil, 45.84 wt% water, 0.16 wt% silicone antifoam agent (as another hydrophobic liquid), a surfactant/emulsifier blend comprising 0.4 wt% alcohol ethoxylate, suspending agents, 0.08 wt% xanthan gum (suspending agent I) and 0.30 wt% bentonite clay (suspending agent II) (Example 3, [0254], Table IV), wherein surfactant C, Rhodasurf 860/P, Rhodia Inc., is an iso-decyl (10 carbons) alcohol ethoxylate, within range of C6-C24 alcohol alkoxylate in instant claim 6.
Wu does not teach the composition having pH from about 2 to about 5 in instant claims 1 and 17, comprising a terpene as recited in instant claim 1 and terpene species as recited in instant claims 10 and 17, or acetic acid as recited in instant claims 11 and 26.
Parrish throughout the reference directs to herbicide compositions containing herbicide compounds, e.g., water-insoluble diphenyl ether type herbicides (e.g., [0004]), in acid form and further including an acidifying agent to achieve acidic composition (e.g., Abstract; [0002]; [0020]).
Parrish teaches that the composition can be microemulsions (e.g., [0042]; Claim 3) comprising water (e.g., [0043]; Claim 2), surfactants such as ethoxylated fatty acids/oils (hydrophobic liquid) (e.g., castor oil ethoxylate 10.0%, [0109]), alcohol ethoxylate (a species of alcohol alkoxylate) (e.g., [0045], [0049]; [0056]), silica (e.g., [0173]), thickeners as well known in the chemical and polymer arts including polyacrylic acids, e.g., commercially available example include Carbopol 910 polyacrylic acid polymer, as pH sensitive hydrogel forming polymer (evidenced by instant specification Pg. 18, Lines 1-14). Parrish specifies the herbicide composition having an acidic pH (e.g., below 7, 6, or 5, or below the pKa of a herbicide compound, or lower) (e.g., [0020]; Claim 6), of which pH below 5 overlaps with pH from about 2 to about 5 in instant claims 1 and 17. Parrish indicates many suitable acidifying agents in the composition including acetic acid (e.g., [0012]), corresponding to instant claims 11 and 26.
Crosby throughout the reference teaches methods and compositions for reducing or inhibiting spray drift of a composition comprising at least one resin (e.g., Claim 1; Abstract).
Crosby teaches the composition can comprise at least one agrochemical (e.g., Claim 5) such as herbicide (e.g., Claim 10; [0034]), one resin that can comprise terpenes, including polyterpenes, alpha and beta terpenes, styrenated terpenes (e.g., Claims 3, 7), alpha pinene or beta pinene, or both (e.g., Claim 9) (corresponding to terpenes in instant claims 1, 10 and 17), alkoxylated polyols (e.g., Claim 3) or alkoxylated fatty alcohols (e.g., [0053]) (corresponding to alcohol alkoxylate in instant claims), fatty acids including carboxylic acid from 4 to 22 carbon atoms (overlapping with carbon number range C6-C12 carboxylic fatty acid in instant claims) and saturated carboxylic acids such as lauric acid (e.g., [0047]) (corresponding to instant claim 8), polyacrylamide polymer for drift control (e.g., [0007]; [0027]; [0035]), pH modifiers (e.g., Claim 6) with the pH from 2 to 12 (overlapping with pH in instant claims 1 and 17).
It would have been prima facie obvious for one with ordinary skills in the art prior to filing date to incorporate the teachings of Parrish and Crosby to select acidic pH along with acetic acid and terpenes into the herbicide composition disclosed by Wu to arrive at current invention. Because all Parrish, Crosby and Wu share many ingredients for herbicide composition, and Parrish teaches that an acidic pH and a pH below the pKa of the herbicide compound is the most preferred, while Wu requires non-hydrated form or at least partially non-hydrated form of polymers in the composition and teaches that water soluble pH sensitive polymers swell when placed in an alkali medium, it would have motivated artisans in the field to choose the acidic pH range taught by Parrish to maintain the water soluble polymer in non-hydrated form (corresponding to non-hydrogel form in recited claims), for obtaining the improved desirable herbicide composition, showing advantages in processing, application, non-volatile, or efficacy, as indicated by Parrish (e.g., [0006]; [0104]); meanwhile Crosby teaches the herbicide composition comprising terpenes can reduce amounts of fine particles as spray drift when sprayed through spray nozzles used in agriculture to disseminate agrochemicals (e.g., [0003]), which would obviously benefit and facilitate the agrochemical field application, especially when the pH sensitive polymer in the composition is not used in hydrogel form as viscosity modifiers. This renders obviousness as combining prior art elements according to known methods to yield predictable results, see In Supreme Court KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007), or renders obviousness as “use of known technique to improve similar devices (methods, or products) in the same way” or as “applying a known technique to a known device (method, or product) ready for improvement to yield predictable results”. See MPEP §2143. (I)(C) and (I)(D). Moreover, It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
MPEP 2112.01.II states "[p]roducts of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id. (Applicant argued that the claimed composition was a pressure sensitive adhesive containing a tacky polymer while the product of the reference was hard and abrasion resistant. "The Board correctly found that the virtual identity of monomers and procedures sufficed to support a prima facie case of unpatentability of Spada’s polymer latexes for lack of novelty."). For this instance, hydrophobicity is the property of the terpene compounds such as pinene, which has been taught by prior art, and they would necessarily present such features. Therefore, they would be comprised in the hydrophobic liquid of the herbicide composition taught by Wu.
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). For this instance, the amount ranges of ingredients, carbon numbers, and pH range overlap with those taught by prior art. Furthermore, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
Claims 1-11, 17-21, 24 and 26-28 are rejected under 35 U.S.C. 103 as being unpatentable over Wu et al. (US20120122688, 05/17/2012, IDS of 08/04/2023), as evidenced by Wikipedia (palm kernel oil, 07/29/2026, PTO-892), in view of Parrish et al. (US20050170967, 08/04/2005) and Crosby et al. (US20140018240, 01/16/2014), as applied to claims 1-8, 10-11, 17-21, and 26-28 above, and further in view of Kilian et al. (CN102098919, 06/15/2011, translation replied upon below; in record of 02/05/2026).
Wu as evidenced by Wikipedia, in view of Parrish and Crosby combined teaches herbicide composition comprising water, C6-C12 fatty acid such as caprylic acid and capric acid ranging from 1 wt% to about 60 wt% of the C6-C12 fatty acid, alcohol alkoxylate like a mixture of C9-11 and C16-C18 alcohol alkoxylate, terpenes including pinene, fumed silica, pH sensitive hydrogel forming polymer comprising monomers of acrylic acid and present in non-hydrogel form (or non-hydrated form), and the composition pH can be below 5, as discussed above in detail and incorporated herein.
Wu as evidenced by Wikipedia, in view of Parrish and Crosby combined teaching does not teach the C6-C12 fatty acid comprises nonanoic acid as recited in instant claims 9 and 24.
Kilian throughout the reference teaches method for weed control in lawn comprising compound with formula (I) in combination with other active ingredients including herbicides (e.g., Abstract; [0104]), in composition that can be oil-in-water emulsions using an aqueous organic solvent and surfactants (e.g., [0301-0302]).
Kilian teaches fatty acids can be used as one or more herbicides in the composition, such as acetic acid (corresponding to instant claims 11 and 26), and fatty acids having C6-C12 carbons, including hexanoic acid, heptanoic acid, nonanoic acid, octanoic acid, decanoic acid and others, preferably nonanoic acid and decanoic acid (e.g., [0126]) (corresponding to C6-C12 fatty acid in instant claims 9 and 24).
It would have been obvious for one with ordinary skills of the art prior to filing date to incorporate fatty acid nonanoic acid taught by Kilian into the herbicide composition taught by Wu, Parrish and Crosby to arrive at current invention. Because Kilian teaches additional herbicidal activities of the C6-C12 fatty acid species, while they belong to general ingredients of the composition taught by Wu, Parrish and Crosby, selecting this compound flows naturally in order to maximize the herbicidal effect of the composition. It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
Response to Arguments
Applicant remarks/arguments filed on 07/13/2026 have been fully considered. In light of the claim amendments filed on 07/13/2026, new ground of rejections have been presented in this office action, the previous prior art reference Messerschmidt has been removed. Please refer to the entire office action as a complete response to remarks/arguments in addition to the following responses.
35 U.S.C. 112 Rejections
Applicant alleges that 35 U.S.C. 112 rejection should be withdrawn.
The previous 112 rejection has been overcome by claim amendment, however, new issues in amended claims lead to new 35 U.S.C. 112 rejections as presented above in detail.
Art Rejections
Applicant asserts that prior art does not provide teaching on the specific elements in the amended claims, such as protonated C6-C12 fatty acid and amount in claims 1 and 17, terpene species in claim 17, pH range from about 2 to about 5 and pH sensitive polymer present in non-hydrogel form.
Because the features applicant mentions above are the added elements in the amended claim set, therefore, this office action has taken full consideration of examining these elements and presented above in detail of the teaching from prior art.
Applicant asserts hindsight reconstruction rather than a teaching or suggestion in the prior art to make the claimed composition in Messerschmidt teaching “hydrophobic liquid limonene or pine oil”.
This is moot because Messerschmidt reference has been removed from office action. New ground of rejections are presented in this office action.
Applicant asserts that prior art does not recognize or suggest this controlled relationship between pH, polymer phase state, and composition structure.
As presented above in great detail, Wu specifies the non-hydrated state of the pH sensitive polymer in the composition in order to contain the polymer in a non-hydrated state (the most relevant paragraphs are copied below for reference). Furthermore, MPEP 2144.01 points out "[I]n considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom." In re Preda, 401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968).
Wu defines the term “hydration” in reference to the water soluble polymer component means association of substituent groups, typically hydrophilic substituent groups, such as hydroxyl groups, of the water soluble polymer with water molecules, such as water molecules of the aqueous medium through, for example, hydrogen bonding. The degree to which the water soluble polymer is hydrated can range from non-hydrated to completely hydrated, with degrees of partial hydration extending between the two extremes [0054]. As referred to "non-hydrated" water soluble polymer makes no significant contribution to the viscosity of the composition. In general, the non-hydrated water soluble polymer would be in the form of a discontinuous phase, for example, discrete particles, that is dispersed in a continuous phase of the liquid medium, ideally with no interaction between the hydrophilic substituents of the polymer and any water molecules present in the liquid medium [0055]. Wu indicates further that it is believed that in the case of a non-hydrated water soluble polymer, interaction among the hydrophilic substituent groups of the non-hydrated water soluble polymer dominates over interaction between the hydrophilic substituent groups of the polymer and any water molecules present in the aqueous medium, the polymer chains of the non-hydrated water soluble polymer are in a compact, folded conformation, and, in the case where the liquid medium is an aqueous medium, the non-hydrated water soluble polymer is not dissolved in the aqueous medium and remains in the form of a discontinuous phase dispersed in the continuous phase of the aqueous medium [0055]. Wu states that “non-hydrated” is referred to as “incompletely hydrated” in the composition [0058]; although the “partially-hydrated” form ([0057], corresponding to hydrogel) is also referred to as “incompletely hydrated” ([0058]). Therefore, since Wu teaches the composition comprising incompletely hydrated water soluble polymer and a pesticide (e.g., Claim 1, Abstract) wherein the pH sensitive polymers, e.g., comprising polymerized residues of acrylic acid, can present in the composition as non-hydrogel form as recited in instant claim 1.
Wu specifies that suitable rheology modifier polymers are used to thicken aqueous compositions and typically fall within three general classes, that is, alkali swellable pH-responsive polymers, hydrogen bridging rheology modifiers (e.g., natural gum like guar), and hydrophobic associative thickeners in the composition (e.g., [0174]-[0176]). Wu indicates that pH responsive polymers that swell when placed in an alkali medium and include, homopolymers and copolymers comprising units derived from ethylenically unsaturated carboxylic acid monomers such as acrylic acid, methacrylic acid (e.g., [0175]) (corresponding to pH sensitive hydrogel forming polymer, as evidenced by instant specification Pg. 18, Lines 1-14); pH adjusting agents can be included in the composition [0224]. As discussed above, Wu teaches the pH sensitive polymer in the composition is in incompletely hydrated form including non-hydrated form. Therefore, Wu teaches, implies, and/or suggests that When the pH sensitive polymer is in non-hydrated form in the composition, the composition would require acidic ranges so that the pH does not promote hydrogel formation of the pH sensitive polymer in the composition, corresponding to instant claims 1 and 17.
It would have been prima facie obvious for one with ordinary skills in the art prior to filing date to incorporate the teachings of Parrish and Crosby to select acidic pH along with acetic acid and terpenes into the herbicide composition disclosed by Wu to arrive at current invention. Because all Parrish, Crosby and Wu share many ingredients for herbicide composition, and Parrish teaches that an acidic pH and a pH below the pKa of the herbicide compound is the most preferred, while Wu requires non-hydrated form or at least partially non-hydrated form of polymers in the composition and teaches that water soluble pH sensitive polymers swell when placed in an alkali medium, it would have motivated artisans in the field to choose the acidic pH range taught by Parrish to maintain the water soluble polymer in non-hydrated form (corresponding to non-hydrogel form in recited claims), for obtaining the improved desirable herbicide composition, showing advantages in processing, application, non-volatile, or efficacy, as indicated by Parrish (e.g., [0006]; [0104]); meanwhile Crosby teaches the herbicide composition comprising terpenes can reduce amounts of fine particles as spray drift when sprayed through spray nozzles used in agriculture to disseminate agrochemicals (e.g., [0003]), which would obviously benefit and facilitate the agrochemical field application, especially when the pH sensitive polymer in the composition is not used in hydrogel form as viscosity modifiers. This renders obviousness as combining prior art elements according to known methods to yield predictable results, see In Supreme Court KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007), or renders obviousness as “use of known technique to improve similar devices (methods, or products) in the same way” or as “applying a known technique to a known device (method, or product) ready for improvement to yield predictable results”. See MPEP §2143. (I)(C) and (I)(D). Moreover, It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
Applicant asserts that Wu is not directed to fatty acid herbicide formulations, nor to improving the efficacy of protonated C6-C12 fatty acid herbicides, and combined prior art does not supply the missing formulation architecture; the reasoning based on knowledge gleaned from applicant’s disclosure appears to impermissible hindsight reconstruction.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., improving the efficacy of protonated C6-C12 fatty acid herbicides) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Combined prior art Wu as evidenced by Wikipedia, in view of Parrish and Crosby, in addition, Kilian have taught all the features in the formulation architecture in instant claims, as presented above in detail. Please refer to the entire office action as a complete response to this assertion.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Moreover, the rejections and prior art have been updated in light of claim amendments.
Applicant mentions the claimed herbicide composition exhibits unexpected results such as, the invention improves herbicidal activity, which is believed to result from the unique combination of the components.
Prior art teaches the current invention as presented in this office action, the combination of the components are obviously not novel or unique, and therefore, whatever advantages or improvements the composition can bring, they would necessarily present in prior art as well. Furthermore, it is noted that the features upon which applicant relies (i.e. improvement of herbicidal activity) are not recited in the rejected claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Conclusion
No claims are allowed.
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/DX.Z./ Examiner, Art Unit 1616
/SUE X LIU/ Supervisory Patent Examiner, Art Unit 1616
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