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 May 13, 2026. Claims 31-54 are pending in the application. Claims 35, 36, 37, 39, 41, and 43-54 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention and non-elected species, there being no allowable generic or linking claim. Claims 31-34, 38, 40, and 42 will presently be examined to the extent they read on the elected subject matter of record.
Status of the Claims
The objection of claim 31 because of the following informalities: capitalization in the middle of the claim is withdrawn due to Applicant’s amendment of claim 31.
The rejection of claims 31-34, 38, 40, and 42 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or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention is withdrawn due to Applicant’s amendment of the claims.
The rejection of claims 31, 32, 33, 34, and 42 under 35 U.S.C. 103 as being unpatentable over Zhang et al. (WO 2012/151455) as evidenced by Mirajkar et al. (US 5,690,911) is withdrawn.
The rejection of claims 38 and 40 under 35 U.S.C. 103 as being unpatentable over Zhang et al. (WO 2012/151455) as evidenced by Mirajkar et al. (US 5,690,911) as applied to claims 31, 32, 33, 34, and 42 above, and further in view of Inch et al. (WO 2019/159061) is withdrawn due to Applicant’s amendment of claims 38 and 40.
The rejection of claims 31, 33, and 42 under 35 U.S.C. 103 as being unpatentable over Chen et al. (CN111513063, Translation) is withdrawn due to Applicant’s convincing argument.
Rejections and/or objections not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections and/or objections presently being applied to the instant application.
New Rejection Necessitated by Amendment filed May 13, 2026
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 38 and 40 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The new matter introduced, “wherein the microorganism is present in a composition for soil application” lacks written description as originally filed. The specification does provide on page 14, paragraph [0061] in the original specification “Bacteria, fungi, mites…Amblyseius sp.,…Trichogramma sp., or the like may be present as microorganisms in the agrochemical formulation” the specification does not provide support for the recitation “the microorganism is present in a composition for soil application”. There is no support for the microorganism being present in a separate composition nor is there support for application of that composition to the soil or in a soil 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.
Claims 31, 32, 33, 34, and 42 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (WO 2012/151455).
Applicant’s Invention
Applicant claims a composition characterized by comprising a compound of general formula (I) (R1-O-R)m, as claimed, wherein the composition comprises: i) from 8 to 60% by weight of the compound of general formula (I), ii) from 5% to 45% by weight of at least one surfactant, iii) from 0% to 10% by weight of at least one unmodified polyol, and iv) water in q.s. 100% by weight, based on the total weight of the composition, wherein the at least one unmodified polyol is selected from a group comprising: 1,2,3-Propanetriol…or 1,2,3,4,5,6-Hexanehexol.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Zhang et al. teach a high-strength, herbicidal oil-in-water emulsion pre-mix composition comprising a dispersed oil phase containing at least one oil soluble herbicide and a water immiscible organic solvent, a continuous aqueous phase containing a water-soluble salt of glyphosate, and at least two non-ionic EO/PO block copolymer emulsifying surfactant. Zhang et al. teach the composition may include additional active ingredients and inert formulations ingredients (page 3, lines 23-30).
Zhang et al. teach preferred non-ionic EO-PO block copolymer surfactants include Pluronic® F77…F68…F127 (page 7, lines 1-3).
Regarding claim 31, Zhang et al. teach in Table 1 Sample A, Sample C, and Sample E.
PNG
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332
510
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Greyscale
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114
500
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Greyscale
In Sample E, Zhang et al. teaches 7.2% Pluronic® F-68, which is a compound of general formula (I), 5.5% Agnique® PG8107-U, which is at least one surfactant; herbicides glyphosate and fluroxypyr-meptyl, and 35% water (pages 11-12, Table 1).
Regarding claim 32, Zhang et al. teach surfactants include alkyl polyglucoside, such as Cognis’ Agnique PG 8107-U (page 8, lines 3-20).
Regarding claims 33 and 34, Zhang et al. teach preferred herbicide active ingredients include benzoic acid herbicides, phenoxyalkanolic acid herbicides, cyclohexanediones (page 4, lines 1-12).
Regarding claims 33 and 34, Zhang et al. teach a water soluble salt of glyphosate (page 6, lines 1-2).
Zhang et al. teach the inert formulations ingredients include adjuvants, antifoam agents, dispersants, spray drift reduction agents, stabilizers and wetting agents (page 7, lines 29-31).
Regarding claim 42, Zhang et al. teach the aqueous herbicidal compositions may optionally be diluted in aqueous spray mixture for agricultural application such as burndown weed control in crop fields prior to planting (page 10, lines 8-10).
Zhang et al. teach the other additional ingredients include one or more other pesticides, and any other additional ingredient providing functional utility (page 10, lines 2-7).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Zhang et al. do not specifically disclose the composition comprises from 8 to 60% by weight of the compound of general formula (I) or the composition comprises an unmodified polyol.
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 Zhang et al. and use from 8 to 60% by weight of the compound of general formula (I). Zhang et al. teach that for component c) the at least two non-ionic EO/PO block copolymer emulsifying surfactants is from about 1g/L to about 200 g/L, which is equivalent to 0.1% to 20%. One of ordinary skill in the art would have been motivated to use the teachings of Zhang et al. as a guide to experiment and optimize the amount of the compound of non-ionic EO/PO block copolymer to use in the composition. In formulation sample E, Pluronic F-68 LF is 7.2% of the composition. The skilled artisan would have found it obvious to use more of the nonionic EO/PO block copolymer in the composition to formulate an effective herbicidal composition. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references, especially within the broad ranges instantly claimed) 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.
Regarding the limitation of an unmodified polyol, the claims recite the at least one unmodified polyol is 0% to 10% by weight of the composition. 0% by weight indicates that it does not have to be a part of the composition. As such, the composition taught by Zhang et al. is the claimed composition which does not contain at least one unmodified polyol.
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 May 13, 2026 have been fully considered but they are not persuasive. The examiner notes that Mirajkar et al. (US 5,690,911) was added as an evidentiary reference. Mirajkar et al. has been withdrawn as a reference of record. However, the withdrawal of this evidentiary reference does not change the scope of the rejection. Applicant argues Zhang neither discloses nor suggests the key features of the presently claimed invention.
Applicant argues the technical purpose of Zhang differs fundamentally from that of the present invention. Applicant argues that Zhang does not recognize or value water retention properties and there is no teaching or suggestion to include unmodified polyols as hygroscopic agents within the formulation.
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., water retention properties) 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).
In further response to Applicant’s argument, Applicant’s claims are directed to a composition comprising a compound of general formula (I) (R1-O-R)m, as claimed, wherein the composition comprises: i) from 8 to 60% by weight of the compound of general formula (I), ii) from 5% to 45% by weight of at least one surfactant, iii) from 0% to 10% by weight of at least one unmodified polyol, and iv) water in q.s. 100% by weight, based on the total weight of the composition, wherein the at least one unmodified polyol is selected from a group comprising: 1,2,3-Propanetriol…or 1,2,3,4,5,6-Hexanehexol. Zhang et al. teach a high-strength, herbicidal oil-in-water emulsion pre-mix composition comprising a dispersed oil phase containing at least one oil soluble herbicide and a water immiscible organic solvent, a continuous aqueous phase containing a water-soluble salt of glyphosate, and at least two non-ionic EO/PO block copolymer emulsifying surfactant. In Sample E, Zhang et al. teaches 7.2% Pluronic® F-68, which is a compound of general formula (I), 5.5% Agnique® PG8107-U, which is at least one surfactant; herbicides glyphosate and fluroxypyr-meptyl, and 35% water (pages 11-12, Table 1). Because Applicant’s claims are directed to a composition, the technical differences of Zhang and water retention properties would be the intended use of the composition. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Without evidence to the contrary, one of ordinary skill in the art would find it obvious that the composition of Zhang et al. would have the same intended purpose.
Applicant argues that Zhang does not suggest increasing the concentration of EO/PO block copolymers to levels approaching 60% by weight. In response to Applicant’s argument, Zhang et al. teach that for component c) the at least two non-ionic EO/PO block copolymer emulsifying surfactants is from about 1g/L to about 200 g/L, which is equivalent to 0.1% to 20%. Since Applicant claims a range of from 8 to 60%, the prior art ranges of 8 to 20% fall within the range of from 8 to 60% by weight of the compound of general formula (I), currently claimed. The examiner maintains that one of ordinary skill in the art would have been motivated to use the teachings of Zhang et al. as a guide to experiment and optimize the amount of the compound of non-ionic EO/PO block copolymer to use in the composition. In formulation sample E, Pluronic F-68 LF is 7.2% of the composition. The skilled artisan would have found it obvious to use more of the nonionic EO/PO block copolymer in the composition to formulate an effective herbicidal composition. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references, especially within the broad ranges instantly claimed) 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 argues that none of the exemplified or claimed compositions of Zhang fall within the compositional ranges of present claim 31. Applicant argues that Zhang does not require the presence of an unmodified polyol (e.g. glycerol). In response to Applicant’s argument, the claims recite the at least one unmodified polyol is 0% to 10% by weight of the composition. 0% by weight indicates that the unmodified polyol does not have to be a part of the composition. As such, the compositions taught by Zhang et al., is the claimed composition which does not contain at least one unmodified polyol.
Applicant argues that a person skilled in the art starting from Zhang would not be motivated to modify its herbicidal emulsion in the direction of the presently claimed composition. Applicant argues that such a modification would require eliminating the oil phase and organic solvents of Zhang, there by fundamentally altering its formulation, and instead incorporation high amounts of hydrophilic polyol derivatives and unmodified polyols for soil application. In response to Applicant’s argument, independent claim 31 uses the transitional term “comprising”, which indicates that other components can be added to the composition, including oil components that are taught by Zhang et al.
Applicant argues that it is directed to foliar spray application for pre-plant burndown of weeds. In response to Applicant’s argument, Zhang et al. teach that in addition to application to weeds, the composition can be added to the locus of weeds or the locus of where weeds may eventually emerge. See page 10, lines 11-12. Zhang et al. further teach the composition can be applied to their locus by the use of conventional ground by addition to irrigation water and by other conventional means known to those skilled in the art. Based on this teaching, it would have been obvious to one of ordinary skill in the art that locus of weeds or the locus of where weeds may eventually emerge, would be soil application, as the skilled artisan would know that the locus of where weeds may emerge is the soil, without evidence to the contrary.
Applicant’s other arguments are moot due to the modification of the rejection of record.
Claims 38 and 40 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (WO 2012/151455) as applied to claims 31, 32, 33, 34, and 42 above, and further in view of Reuter (US 2011/0200572).
Applicant’s Invention
Applicant claims a composition characterized by comprising a compound of general formula (I) (R1-O-R)m, as claimed, wherein the composition comprises: i) from 8 to 60% by weight of the compound of general formula (I), ii) from 5% to 45% by weight of at least one surfactant, iii) from 0% to 10% by weight of at least one unmodified polyol, and iv) water in q.s. 100% by weight, based on the total weight of the composition, wherein the at least one unmodified polyol is selected from a group comprising: 1,2,3-Propanetriol…or 1,2,3,4,5,6-Hexanehexol. Applicant further claims the agrochemical characterized in that it comprises at least one additional ingredient selected from nutrients, microorganisms, and growth regulating/bio-stimulant compounds, wherein the microorganism is present in a composition for soil application.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
The teachings of Zhang et al. with respect to the 35 U.S.C. 103 rejection is hereby incorporated and are therefore applied in the instant rejection as discussed above.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Zhang et al. do not specifically disclose the one additional ingredient is a microorganisms, as claimed in claim 38 or the specifically claimed microorganisms, as claimed in claim 40. It is for this reason Reuter is added as a secondary reference.
Regarding claims 38 and 40, Reuter teaches methods for providing Bacillus spores for application to agricultural soil or plant material (Abstract). Reuter teaches a method for providing a Bacillus on agricultural soil or plant material, which comprises the steps of: (a) suspending Bacillus spores in a liquid consisting essentially of water and acetic acid, wherein the acetic acid lowers the pH so that the spores are inhibited from germination and growth; and (b) neutralizing the liquid of step (a) to enable the spores to provide an enabled Bacillus and applying the enabled Bacillus to the soil or plant material (page 5, claim 1). Reuter teaches the Bacillus spores are Bacillus subtilis (page 5, claim 3). Reuter further teaches the applying in step (b) is to soil (page 5, claim 5).
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 Zhang et al. and Reuter and add an additional ingredient, such as microorganisms to the composition. Zhang et al. teach a high-strength, herbicidal oil-in-water emulsion pre-mix composition comprising a dispersed oil phase containing at least one oil soluble herbicide and a water immiscible organic solvent, a continuous aqueous phase containing a water soluble salt of glyphosate, and at least two non-ionic EO/PO block copolymer emulsifying surfactant. Zhang et al. teach preferred non-ionic EO-PO block copolymer surfactants include Pluronic® F77…F68…F127 (page 7, lines 1-3). Zhang et al. teach the composition may include additional active ingredients and inert formulations ingredients. Because Zhang et al. teach the other additional ingredients include one or more other pesticides, and any other additional ingredient providing functional utility, one of ordinary skill in the art would have been motivated to add a microorganism such as the Bacillus species, taught by Reuter that is specifically applied to soil. As such, the skilled artisan would have been motivated to add a microorganism to the composition with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
Regarding the application of the microorganism to soil, Zhang et al. teach that in addition to application to weeds, the composition can be added to the locus of weeds or the locus of where weeds may eventually emerge. Zhang et al. further teach the composition can be applied to their locus by the use of conventional ground by addition to irrigation water and by other conventional means known to those skilled in the art. Based on this teaching, it would have been obvious to one of ordinary skill in the art that locus of weeds or the locus of where weeds may eventually emerge, would be soil application, as the skilled artisan would know that the locus of where weeds may emerge is the soil, without evidence to the contrary. Reuters specifically teaches that the Bacillus is applied to the soil. As such, it would have been obvious to one of ordinary skill in the art that the compositions of Zhang et al. and the microorganisms of Reuter are applied to soil.
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.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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.
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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
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