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 .
This Office Action is in response to Applicant’s amendment filed September 30, 2025. Claims 1-19 are pending in the application. Claims 1-19 have been amended. Claims 1-19 will be examined.
Status of the Claims
The objection of claims 1-19 because of informalities is withdrawn due to Applicant’s amendment of the claims.
The rejection of claims 1 and 4-19 under 35 U.S.C. 103 as being unpatentable over Winter et al. (WO 2019/030098) in view of Jin (US2020/0288718) is maintained.
The rejection of claims 1-3 and 13-19 under 35 U.S.C. 103 as being unpatentable over Massa et al. (WO 2016/11334) in view of Jin (US2020/0288718) is maintained.
Objections not reiterated from the previous Office Action are hereby withdrawn. The following rejections are reiterated. They constitute the complete set of rejections presently being applied to the instant application.
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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 and 4-19 are rejected under 35 U.S.C. 103 as being unpatentable over Winter et al. (WO 2019/030098) in view of Jin (US2020/0288718). Winter et al. and Jin cited by Applicant on the IDS dated 4/11/2023.
Applicant’s Invention
Applicant claims a combination of herbicides comprising (i) glufosinate, L-glufosinate or an agronomically acceptable salt thereof, and (ii) a mixture of (A) saflufenacil and (B) trifludimoxazin, wherein a ratio by weight of a total amount of component (i) is at least 40 times more than a total amount of component (ii) in case of (i) being glufosinate, and is at least 20 times more than the total amount of component (ii) in case of (i) being L-glufosinate; and wherein within the component (ii), the ratio by weight of the total amount of component (A) to component (B) is from 10:1 to 1:10. Applicant claims a combination wherein the total amount of component (i) is from 100 to 600 g/L based on the total amount of the combination. Applicant claims a composition comprising the combination of herbicides according to claim 1 and one or more further components selected from the group consisting of formulation auxiliaries, additives customary in crop protection, and further agrochemically active compounds. Applicant claims a method for producing a herbicide combination as defined in claim 1. Applicant claims a method for controlling undesired plant growth, and/or controlling harmful plants, comprising applying a herbicide combination as defined in claim 1 onto the undesired plants or the harmful plants, on parts of the undesired plants or the harmful plants, or on the area where the undesired plants or the harmful plants grow.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Regarding claims 1, 4, and 5, Winter et al. teach herbicidal mixtures comprising L-glufosinate or its salt and at least one protoporphyrinogen-IX-oxidase inhibitor (Abstract). Winter et al. teach it has been found that L-glufosinate (compound i) and at least one protoporphyrinogen-IX-oxidase inhibitor (compound ii) show a higher activity in burndown programs, in industrial vegetation management and forestry, in vegetable and perennial crops and in turf and lawn (page 2, lines 34-37). Winter et al. teach saflufenacil and trifludimoxazin are preferred protoporphyrinogen-IX-oxidase inhibitors (page 3, line 9, page 5, lines 4 and 36). Winter et al. teach the mixtures have a weight ratio of compound I to compound II is preferably from 500:1, 200:1, most preferably 50:1 (page 4, lines 30-32).
Regarding claim 1, Winter et al. teach the preferred mixtures are the mixtures comprising L-glufosinate and saflufenacil and trifludimoxazin (page 8, lines 16-22). Winter et al. specifically teach composition T-1: I-1 (L-glufosinate ammonium) + II-5 (saflufenacil) + II-15 (trifludimoxazin) (page 8, line 20).
Regarding claims 13 and 14, Winter et al. teach an herbicidal formulation which comprises a herbicidally active mixture and at least one carrier material, including liquid and/or solid carrier (page 12, lines 35-37).
Regarding claim 15, Winter et al. teach examples of mixture types are suspensions (e.g. SC, OD), and capsules (page 9, lines 1-5, page 11, line 10).
Regarding claim 16, Christian et al. teach the inventive mixtures can be converted into customary types of agrochemical mixtures, e.g. solutions, emulsions, suspensions (page 8, lines 24-25).
Regarding claim 17, Winter et al. teach a method for controlling undesirable vegetation, which comprises applying an inventive mixture to a locus where undesirable vegetation is present or expected to be present, wherein application can be done before, during and/or after the emergence of the undesirable vegetation (page 13, lines 20-23).
Winter et al. teach the spray mixture is from 10 to 2000 l/ha, 50 to 1000 l/ha.
Winter et al. teach the application rate of the mixture is from 5 to 6000 g/ha, preferably 100 to 5000 g/ha, from 200 to 4000 g/ha, more preferable from 300 to 3000 g/ha of active ingredient (page 14, lines 21-27, page 31, lines 17-20).
Regarding claims 18 and 19, Winter et al. teach the inventive mixtures are suitable for combating/controlling common harmful plant fields, where useful plants shall be planted. The inventive mixtures include legumes (page 20, lines 28-29), TNV-crops, such as grapes, citrus, pomefruit, and apricot (page 20, lines 37-39). The crops taught by Winter et al. are specialty crops. Winter et al. teach the rate of application of L-glufosinate is usually from 50 g/h to 3000 g/ha, preferably in the range from 100 g/ha to 2000 g/ha or from 200 g/ha to 1500 g/ha. The application rate of the protoporphyrinogen-IX-oxidase inhibitor is from 1 g/ha to 2000 g/ha, more preferably from 25 g/ha to 900 g/ah of active substance (page 31, lines 28-32).
Winter et al. teach in Example 1, post emergence treatment with the mixture of L-glufosinate with saflufenacil (page 33, lines 1-4). Winter et al. teach in Example 3, post emergence treatment with the mixture of L-glufosinate with trifludimoxazin (page 33, lines 9-15).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Winter et al. do not specifically disclose the component (ii) the ratio by weight of the total amount of component (A) to the total amount of component (B) is at least from 5:1 to 1:5, as claimed in claim 6, the ratio by weight of the total amount of component (A) to the total amount of component (B) is at least 4:1 to 1:4, as claimed in claim 7, the ratio by weight of the total amount of component (A) to the total amount of component (B) is at least from 3:1 to 1:3, as claimed in claim 8, the ratio by weight of the total amount of component (A) to the total amount of component (B) is at least from 2:1 to 1:2, as claimed in claim 9, the total amount of component (i) is from 100 to 600 g/L, as claimed in claim 10, the total amount of component (i) is from 100 to 600 g/L and the total amount of component (ii) is in the range of from 0.2 to 30 g/L in the case of (i) being L-glufosinate, as claimed in claims 11 and 12. It is for this reason Jin is added as a secondary reference.
Jin teaches a herbicidal composition including trifludimoxazin and at least one compound selected from the group consisting of a herbicide compound group B (Abstract). Jin teaches the weight ratio of trifludimoxazin and saflufenacil is 1:0.1 to 1:20 (page 5, paragraph 157).
Finding a prima facie obviousness Rationale and Motivation
(MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Winter et al. and Jin and determine the ratio by weight of the total amount of component (A) to the total amount of component (B), as claimed in claims 6, 7, 8 and 9. Winter et al. teach the preferred mixtures are the mixtures comprising L-glufosinate and saflufenacil and trifludimoxazin. Winter et al. specifically teach composition T-1: I-1 (L-glufosinate ammonium) + II-5 (saflufenacil) + II-15 (trifludimoxazin). Winter et al. teach the mixtures have a weight ratio of compound I to compound II is preferably from 500:1, 200:1, most preferably 50:1. Jin teaches the weight ratio of trifludimoxazin and saflufenacil is from 1:0.1 to 1:20. One of ordinary skill in the art would have been motivated to use the weight ratios of 1:0.1 to 1:20 as taught by Jin to determine the optimal weight ratios of herbicide (A) to herbicide (B), such as 10:1 to 1:10, 5:1 to 1:5, 4:1 to 1:4, 3:1 to 1:3, and 2:1 to 1:2 as a matter of experimentation and optimization. The adjustment of particular conventional working is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
One of ordinary skill in the art would have been motivated to combine the teachings of Winter et al. and Jin to determine the amount of L-glufosinate (component (i)) and (A) saflufenacil and (B) trifludimoxazin (component (ii) as a matter of experimentation and optimization to formulate an effective herbicidal composition. Winter et al. teach the preferred mixtures are the mixtures comprising L-glufosinate and saflufenacil and trifludimoxazin. The ratio of compound I to compound II is preferably from 1000:1, 400:1, more preferably 500:1. Winter et al. teach the spray mixture is from 10 to 2000 l/ha, 50 to 1000 l/ha. One of ordinary skill in the art would have been motivated to use the teachings of Winter et al. regarding the amounts and application rates of (i) is from 100 to 600 g/L, as claimed in claim 10, the total amount of component (ii) is in the range of from 0.2 to 30 g/L in the case of (i) being L-glufosinate, as claimed in claim 11, or the total amount of component (i) is in the range of from 100 to 600 g/L and the total amount of component (ii) is in the range of 0.2 to 30 g/L in the case of (i) being L-glufosinate, as claimed in claim 12 to provide higher activity in burndown programs, in industrial vegetation management and forestry, in vegetable and perennial crops and in turf and lawn. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Response to Arguments
Applicant's arguments filed September 30, 2025 have been fully considered but they are not persuasive. Applicant argues Winter does not teach or suggest any explicit ratio for component (A) to component (B). Applicant argues that weight ratio of trifludimoxazin to saflufenacil in Jin is in the context of the binary mixture, not the ternary mixture presently claimed and only through the use of hindsight reasoning would a person have selected the ratio for the binary mixture of Jin and used it in a ternary mixture. Applicant argues that neither of the references (either alone or in combination) disclose or suggest the specific combination of (i) glufosinate (or L-glufosinate and/or agronomically acceptable salts thereof) and (ii) a mixture of (A) saflufenacil and (B) trifludimoxazin in the specifically recited weight ratios.
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). The examiner acknowledged that Winter et al. do not teach the claimed ratios. It is for this reason Jin et al. was added as a secondary reference. Winter et al. specifically teach composition T-1, which comprises I-1 (L-glufosinate ammonium) + II-5 (saflufenacil) + II-15 (trifludimoxazin). Winter et al. teach the mixtures have a weight ratio of compound I to compound II is preferably from 500:1, 200:1, most preferably 50:1. Jin teaches the weight ratio of trifludimoxazin and saflufenacil is from 1:0.1 to 1:20. One of ordinary skill in the art would have been motivated to use the weight ratios of 1:0.1 to 1:20 as taught by Jin to determine the optimal weight ratios of herbicide (A) to herbicide (B), such as 10:1 to 1:10, 5:1 to 1:5, 4:1 to 1:4, 3:1 to 1:3, and 2:1 to 1:2 as a matter of experimentation and optimization. One of ordinary skill in the art would have been motivated to use known weight ratios in the art, whether in binary or ternary compositions. It is known in the art to combine two or more compositions each of which is taught by prior art to be useful for the same purpose in order to form a third composition that is to be used for the very same purpose. The idea of combining them flows logically from their having been individually taught in prior art, thus claims that requires no more than mixing together two or three conventional plant growth regulators set forth prima facie obvious subject matter. This includes using known weight ratios of the components to formulate the composition. The adjustment of particular conventional working is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Applicant further argues that the claimed invention has surprising and unexpected results and properties. Applicant references the results in Examples 1, 2, and 3. In response to Applicant’s argument, evidence of nonobviousness must be commensurate in scope with that of the claimed subject matter. The data provided in the original specification in Table 1 glufosinate (280 g ai/L) applied at 450 g/ha and saflufenacil 342 SC + trifludimoxazin 500SC applied at 2.50 g a/ha and 1.25 g a/ha, respectively, purportedly demonstrates unexpected herbicidal activity. Also, in Table 1 there is data for glufosinate (280 g ai/L) applied at 450 g/ha and saflufenacil 342 SC + trifludimoxazin 500SC applied at 6.25 g a/ha and 3.13 g/ha, respectively. While this data appears to be unexpected, compared to the application of the herbicides alone, it is not commensurate in scope with the claimed invention. Applicant claims a combination of herbicides comprising (i) glufosinate, L-glufosinate or an agronomically acceptable salt thereof, and (ii) a mixture of (A) saflufenacil and (B) trifludimoxazin, wherein a ratio by weight of a total amount of component (i) is at least 40 times more than a total amount of component (ii) in case of (i) being glufosinate, and is at least 20 times more than the total amount of component (ii) in case of (i) being L-glufosinate; and wherein within the component (ii), the ratio by weight of the total amount of component (A) to component (B) is from 10:1 to 1:10. Applicant also claims the total amount of component (i) is applied in the range of from 300 to 6000 g/ha in the case of (i) being glufosinate or the total amount of component (i) is applied in the range of from 150 to 3000 g/ha in case of (i) being L-glufosinate, and the total amount of component (ii) is applied in the range of from 0.15 to 60 g/ha.
All of the data presented is directed to glufosinate and saflufenacil + trifludimoxazin. The claims are also directed to compositions comprising L-glufosinate and saflufenacil + trifludimoxazin wherein the weight ratios and perimeters for L-glufosinate and saflufenacil + trifludimoxazin claimed are different from those compositions comprising glufosinate and saflufenacil + trifludimoxazin. Since Applicant has claims directed specifically to L-glufosinate and saflufenacil + trifludimoxazin, one would expect to obtain different results. See claims 1, 4, 5, 11, 12, 18, and 19. As such, the data is not representative of the full scope of the claims, specifically to compositions comprising L-glufosinate and saflufenacil + trifludimoxazin. In addition, the total amount of glufosinate tested is 280 g/L. It cannot be determined if the results demonstrated using 280 g/L of glufosinate is indicative of the use of 100 to 600 g/L of glufosinate or L-glufosinate, currently claimed in claims 10 and 12. In addition, regarding the weight ratio of component (A) to component (B), the data in table 1 demonstrates the weight ratio of component (A) to component (B) is 2:1. It cannot be determined if the results demonstrated for a weight ratio of 2:1 is representative of the range of 10:1 to 1:10, 5:1 to 1:5, 4:1 to 1:4 or 3:1 to 1:3, as currently claimed. Further the weight ratios of glufosinate to saflufenacil + trifludimoxazin are 120:1 and 47.9:1. The weight ratios of glufosinate to saflufenacil + trifludimoxazin in Tables 2 and 3 are 180:1 and 71.4:1. It cannot be determined if the results demonstrated with the weight ratios of glufosinate to saflufenacil + trifludimoxazin, ranging from 47.9:1 to 180:1 is indicative of the weight ratio of 1000:1 to 50:1, as claimed in claim 2 or 500:1 to 60:1, as claimed in claim 3, 300 to 6000 g/ha, as claimed in claim 18 or 300 to 1000 g/ha, as claimed in claim 19 or the weight ratios of L-glufosinate to saflufenacil + trifludimoxazin, as currently claimed. Applicant has not established nonobvious evidence that is commensurate in scope with that of the claimed subject matter.
Claims 1-3 and 13-19 are rejected under 35 U.S.C. 103 as being unpatentable over Massa et al. (WO 2016/11334) in view of Jin (US2020/0288718). Massa et al. cited by Applicant on IDS filed 7/17/2023. Jin cited by Applicant on the IDS dated 4/11/2023.
Applicant’s Invention
Applicant claims a combination of herbicides comprising (i) glufosinate, L-glufosinate or an agronomically acceptable salt thereof, and (ii) a mixture of (A) saflufenacil and (B) trifludimoxazin, wherein a ratio by weight of a total amount of component (i) is at least 40 times more than a total amount of component (ii) in case of (i) being glufosinate, and is at least 20 times more than the total amount of component (ii) in case of (i) being L-glufosinate; and wherein within the component (ii), the ratio by weight of the total amount of component (A) to component (B) is from 10:1 to 1:10. Applicant claims a combination wherein the total amount of component (i) is from 100 to 600 g/L based on the total amount of the combination. Applicant claims a composition comprising the combination of herbicides according to claim 1 and one or more further components selected from the group consisting of formulation auxiliaries, additives customary in crop protection, and further agrochemically active compounds. Applicant claims a method for producing a herbicide combination as defined in claim 1. Applicant claims a method for controlling undesired plant growth, and/or controlling harmful plants, comprising applying a herbicide combination as defined in claim 1 onto the undesired plants or the harmful plants, on parts of the undesired plants or the harmful plants, or on the area where the undesired plants or the harmful plants grow.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Regarding claim 1, Massa et al. teach a herbicidal combination comprising: a) a herbicide A which is saflufenacil, b) a herbicide B which is glufosinate or one of its salts, and c) at least one herbicide C different from herbicides A and B, including C.6 (page 2, lines 31-39-page 3, lines 1-3).
Regarding claim 1, Massa et al. teach triazin(di)one herbicides (C.6.2) include trifludimoxazin (page 18, lines 26-29). Massa et al. teach the relative weight ratio of saflufenacil (herbicide A) to herbicide C.6 is specifically from 10:1 to 1:10 (page 19, lines 26).
Regarding claims 2 and 3, Massa et al. teach the weight ratio of herbicide B, glufosinate to herbicides A, saflufenacil + C, trifludimoxazin is preferably 500:1 to 1:100 (page 5, lines 9-10).
Regarding claim 14, Massa et al. teach depending on the formulation type, they comprise one or more liquid or solid carrier, and if appropriate further auxiliaries which are customary for formulating crop protection products (page 46, lines 5-11).
Regarding claim 15, Massa et al. teach the formulation can be in the form of suspensions, oil dispersions (page 45, lines 38-39-page 46, line 2).
Regarding claim 16, Massa et al. teach the formulation may be in the form of a single package formulation containing the herbicide A, the herbicide B, the at least one herbicide C together with liquid and/or solid carrier materials, and if desired, one or more surfactants. In the case of three or multi package formulations the formulation containing saflufenacil and the formulation containing the herbicide B and the at least one formulation containing the at least one herbicide C are mixed prior to application. Preferably the mixing is performed as a tank mix (page 45, lines 20-36).
Regarding claim 17, Massa et al. teach a method for controlling undesirable vegetation, comprising applying a herbicidal combination comprising a) saflufenacil, b) glufosinate or one of its salts and c) at least one herbicide C to a locus where undesirable vegetation is present or is expected to be present (page 36, lines 22-29).
Massa et al. teach application can be carried out by customary spraying techniques using water as carrier and spray liquor rates of from about 10 to 2000 l/ha or 50 to 1000 l/ha (page 37, lines 31-35).
Regarding claims 18 and 19, Massa et al. teach the mixtures are suitable for combating/controlling common harmful plant fields, where useful plants shall be planted. The inventive mixtures include legumes (page 41, lines 9-12), TNV-crops, such as grapes, citrus, pomefruit, and apricot (page 41, lines 18-20). The crops taught by Massa et al. are row crops and specialty crops. Massa et al. teach the rate of application of herbicide B is usually 100 g/ha to 2000 g/ha (page 39, lines 30-32). Massa et al. teach the rate of application of saflufenacil is usually from 1 g/ha to 500 g/ha, preferably in the range from 10 g/ha to 100 g/ha (page 39, lines 26-28).
Massa et al. teach the application rates of the herbicide C.6 are generally in the range from 10 g/a to 8000 g/ha, preferably from 50 g/ha to 4000 g/ha (page 40, lines 18-20).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Massa et al. do not specifically provide examples of combinations of glufosinate, saflufenacil and trifludimoxazin or the ratio by weight of the total amount of component (i) is at least 40 times more than the total amount of component (ii) in case of (i) being glufosinate. It is for this reason Jin is added as a secondary reference.
The teachings of Jin with respect to the 35 U.S.C. 103(a) rejection is hereby incorporated and are therefore applied in the instant rejection as discussed above.
Finding a prima facie obviousness Rationale and Motivation
(MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Massa et al. and Jin and use trifludimoxazin as the herbicide C in the compositions taught by Massa et al. Massa et al. teach a herbicidal combination comprising: a) a herbicide A which is saflufenacil, b) a herbicide B which is glufosinate or one of its salts, and c) at least one herbicide C different from herbicides A and B, including C.6. Massa et al. teach that trifludimoxazin is a herbicide C. Jin teaches compositions comprising saflufenacil and trifludimoxazin. It is known in the agricultural art to combine multiple herbicides, including ternary compositions. In view of In re Kerkhoven, 205 USPQ 1069 (C.C.P.A. 1980), it is prima facie obvious to combine two or more compositions each of which is taught by prior art to be useful for the same purpose in order to form a third composition that is to be used for the very same purpose. The idea of combining them flows logically from their having been individually taught in prior art, thus claims that requires no more than mixing together two or three conventional herbicides set forth prima facie obvious subject matter, with a reasonable expectation of success.
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to use the teachings of Massa et al. to determine the weight of the total amount of component (i) that is at least 40 times more than the total amount of component (ii) in case of (i) being glufosinate. Massa et al. teach the weight ratio of herbicide B, glufosinate to herbicides A, saflufenacil + C, trifludimoxazin is preferably 500:1 to 1:100. One of ordinary skill in the art would have been motivated to use the guidance of Massa et al. to determine the optimal weight ratio of glufosinate to component (ii), including 40 times more than the total amount of component (ii), as claimed, with a reasonable expectation of success. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Response to Arguments
Applicant's arguments filed September 30, 2025 have been fully considered but they are not persuasive. Applicant argues that independent claim 1 requires a specific weight ratio of component (i) to component (ii) and that claim 1 also requires that within the component (ii), the ratio by weight of the total amount of component (A) to component (B) is from 10:1 to 1:10. Applicant argues that neither of the references (either alone or in combination) disclose or suggest the specific combination of (i) glufosinate (or L-glufosinate and/or agronomically acceptable salts thereof) and (ii) a mixture of (A) saflufenacil and (B) trifludimoxazin in the specifically recited weight ratios. In response to Applicant’s argument, Massa et al. teach a herbicidal combination comprising: a) a herbicide A which is saflufenacil, b) a herbicide B which is glufosinate or one of its salts, and c) at least one herbicide C different from herbicides A and B, including C.6. Massa et al. teach that trifludimoxazin is a herbicide C. Jin teaches compositions comprising saflufenacil and trifludimoxazin. It is known in the agricultural art to combine multiple herbicides, including ternary compositions. In view of In re Kerkhoven, 205 USPQ 1069 (C.C.P.A. 1980), it is prima facie obvious to combine two or more compositions each of which is taught by prior art to be useful for the same purpose in order to form a third composition that is to be used for the very same purpose. Massa et al. teach triazin(di)one herbicides (C.6.2) include trifludimoxazin (page 18, lines 26-29). Massa et al. teach the relative weight ratio of saflufenacil (herbicide A) to herbicide C.6 is specifically from 10:1 to 1:10. As such, based on this teaching one of ordinary skill in the art would have found it obvious to formulate a composition comprising (A) saflufenacil and (B) trifludimoxazin at a weight ratio of 10:1 to 1:10, with a reasonable expectation of success. In addition, the adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Applicant further argues that the claimed invention has surprising and unexpected results and properties. Applicant references the results in Examples 1, 2, and 3. In response to Applicant’s argument, evidence of nonobviousness must be commensurate in scope with that of the claimed subject matter. The response to the unexpected results are delineated hereinabove in the response to the argument for the rejection based on the 103 rejection of Winter et al. (WO 2019/030098) in view of Jin (US2020/0288718). The analysis and response are the same. Applicant has not established nonobvious evidence that is commensurate in scope with that of the claimed subject matter, as discussed herein above.
Conclusion
No claims are allowed.
THIS ACTION IS MADE FINAL. 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Andriae M Holt whose telephone number is (571)272-9328. The examiner can normally be reached Monday-Friday, 8:00 am-4:30 pm EST.
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, Ali Soroush can be reached at 571-272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDRIAE M HOLT/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614