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 .
Applicants’ arguments, filed 1/20/2026, have been fully considered. Rejections and/or objections not reiterated from previous office action are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Rejections - 35 USC § 103 – Previous
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.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
1) Claims 1-4, 8-15 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Maier et al. (US 6,667,276 B1, date of patent 23/12/2003) and Gao et al. (WO 97/23281, publication date 07/03/1997), as evidence by EChemi (polyoxyethylene lauryl ether sodium sulfate, echemi.com, 2025 [retrieved 10/14/2025], https://www.echemi.com/products/pid_Rock37735-sodiumlaurylpolyoxyethyleneethersulfate.html) and PubChem CID 51556 (Fomesafen, PubChem CID 51556, [retrieved 10/14/2025], https://pubchem.ncbi.nlm.nih.gov/compound/Fomesafen#section=Solubility&fullscreen=true).
Regarding instant claims 1, 3, 4, 8, 9, 12, and 14, Maier discloses a microemulsion comprising a water-soluble active compound (type (a)), a water-insoluble active compound (type (b)), organic solvents, a surfactant system and water [abstract]. The water-soluble, type (a), active compound may be a glufosinate salt [abstract], such as the L-enantiomer of glufosinate (i.e., (L)-glufosinate) and its ammonium salts (i.e., instant claim 14) [col. 9, line 6]. The surfactant system may comprise ‘anionogenic’ alkyl polyglycol ether sulfate surfactants such as Genapol LRO [col. 5, lines 52-57]. Maier discloses the composition may further comprise surfactants such as wetting agents [col. 4, lines 1-5]. Finally, according to Maier, until the disclosed microemulsion formulation it has been “difficult to predict if stable microemulsions can be prepared for an individual case, and in most cases special coordination of all components and ratios is required. There is therefore in principle a demand for surfactant systems which make preparation of stable micro emulsions possible” [col. 3, lines 15-20].
Genapol LRO is polyoxyethylene lauryl ether sodium sulfate (i.e., the elected species for B.1, the structure of which reads on the structure as defined by claims 1, 3, 4, 8, 9 and 18), as evidence by EChemi at line 18 of the synonyms list on page 1.
Maier does not disclose sodium 2-ethylhexyl sulfate, i.e., B.2.
Gao discloses surfactant blends, comprising an organosilicone and a water-soluble surfactant [abstract]. The surfactant systems provide improved superspreading, useful in agricultural applications, for example as an adjuvant for delivery of an active agent [abstract]. Specific water-soluble surfactants include sodium 2-ethylhexyl sulfate (i.e., elected species for B.2, the structure of which reads on the structure as defined by claims 1, 3, 4, 8, 9 and 18) [p. 6, lines 8] and nonionic surfactants (i.e., instant claim 12) [p. 6, lines 17].
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined the surfactant system taught be Gao with the microemulsion taught by Maier. One would have been motivated to combine these two composition because Maier desires a wetting agent to deliver an agricultural active agent, and Gao discloses a composition which provides improved superspreading (i.e. wetting agent) useful as an adjuvant for agricultural actives. One would have had an expectation of success first because the system of Gao is a surfactant wetting agent, as desired by Maier, and second because, unlike other microemulsions, the microemulsions of Maier are taught to be stable to changes in components and component ratios. Additionally, in combining these elements one would have expected nothing more than predictable results because, when combined, each prior art element would have performed the same function as it had separately. See MPEP 2143, Exemplary Rationale A.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated a microemulsion comprising (L)-glufosinate ammonium salt (water-soluble pesticide), a water-insoluble pesticide, sodium lauryl ether sulfate (polyoxyethylene lauryl ether sodium sulfate), sodium 2-ethyhexyl sulfate, and a nonionic surfactant.
Regarding instant claims 2 and 10, Maier discloses the water-soluble type (a) active may be present in amounts from 5-20% by weight, the water-insoluble type (b) active may be present in amounts from 1-10% by weight and the anionogenic alkyl polyglycol ether sulfate surfactant (i.e., Genapol LRO or instant surfactant B.1) may be present in amounts from 0-20% by weight with respect to the total weight of the microemulsion [col. 15, lines 5-23]. See Table 1.
Maier does not disclose the amount of B.2 surfactant.
Gao discloses the water-soluble surfactants (i.e., sodium 2-ethylhexyl sulfate) may be present in the surfactant system in amounts from 5-30% by weight of the actives [p. 9, lines 9-11]. See Table 1.
Therefore, in combining the surfactant system of Gao with the microemulsion of Maier, one of ordinary skill in the art would have understood that the amount of water-soluble surfactants provided by the surfactant system of Gao would be in the range of about 0.1% to about 9% w/w with respect to the total weight of the combined composition. The range of 0.1-9% w/w represents 5-30% of the combined range of active agents (i.e., 2-30% w/w) disclosed by Maier. See Table 1.
Table 1. Component amounts as disclosed by Maier, Gao and in combination, compared to the instant claims.
Component
Maier
(% w/w total)
Gao
Combined
(% w/w total)
Instant claim 2 (% w/w total)
(L)-Glufosinate
1-20
--
1-20
5-50
Water-insoluble pesticide
1-10
--
1-10
1-50
Genapol LRO (B.1)
0-20
--
0-20
5-70
Sodium 2-ethylhexyl sulfate (B.2)
--
5-30 % of the actives
~0.1-9
As the prior art teaches a composition comprising 0-20% w/w of the surfactant B.1 (i.e., formula (I)), and about 0.1-9% w/w of surfactant B.2 (i.e., formula (II)), the prior art also teaches a weight ratio of B.1 to B.2 which includes, for example, the range 1:10 (0.9% w/w B.1 and 9% w/w B.2) to 10:1 (10% w/w B.1 and 1% w/w B.2).
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). In the present case, the claimed ranges for the water-soluble pesticide ((L)-glufosinate; A.1), water-insoluble pesticide (A.2), the combined amount of surfactants B.1 and B.2 and the ratio of surfactant B.1 to B.2 of instant claim 2 and 10, all overlap with the respective ranges disclosed in the prior art (see table 1 and paragraph above) and so a prima facie case of obviousness exists for each range of instant claim 2.
Regarding instant claim 11, Maier discloses “[s]uitable for preparing the microemulsions are essentially those solvents which predominantly become a component of the organic phase, i.e. solvents or solvent mixtures which are not or only sparingly miscible with water. In addition, it is also possible to mix, if appropriate, solvents which are partially or indefinitely soluble in water” (i.e., completely miscible with water) [col. 12, lines 10-16]. Maier also discloses methanol as a suitable solvent [col. 12, line 6].
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated the microemulsion taught by Maier and Gao to comprise a completely water miscible organic solvent, such as methanol, because Maier discloses it is a suitable solvent for the microemulsion. See MPEP 2144.07.
Regarding instant claims 13, 15, and 17, Maier discloses fomesafen is a suitable water-insoluble pesticide (i.e., a protoporphyrinogen oxidase inhibitor according to the instant specification at lines 27-28 of page 25) [col. 10, line 2].
Fomesafen has a water solubility of 50mg/L or 0.05 g/l, as evidenced by PubChem CID 51556.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated the microemulsion taught by Maier and Gao to comprise fomesafen, a protoporphyrinogen oxidase inhibitor with a solubility less than 10 g/L in water, because Maier discloses it as a suitable option. See MPEP 2144.07.
2) Claims 16, 18 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Maier et al. (US 6,667,276 B1, date of patent 23/12/2003) and Gao et al. (WO 97/23281, publication date 07/03/1997), as evidence by EChemi (polyoxyethylene lauryl ether sodium sulfate, echemi.com, 2025 [retrieved 10/14/2025], https://www.echemi.com/products/pid_Rock37735-sodiumlaurylpolyoxyethyleneethersulfate.html) and PubChem CID 51556 (Fomesafen, PubChem CID 51556, [retrieved 10/14/2025], https://pubchem.ncbi.nlm.nih.gov/compound/Fomesafen#section=Solubility&fullscreen=true) as applied to claims 1-4, 8-15 and 17 above, and further in view of Winter et al. (WO 2019/030091 A2, publication date 14/02/2019).
Maier and Gao, which are taught above, differ from the instant claims insofar as they do not teach dimethenamid-P.
Winter teaches an herbicidal mixture comprising L-glufosinate and at least one herbicidal compound, such as fomesafen and dimethenamid-P [abstract]. However, Winter discloses the second herbicidal compound is preferably dimethenamid-P [p. 7, lines 5-7]. Furthermore, the mixture may be formulated as a microemulsion [p. 17, line 41 and p. 18, line 39].
“The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)” (see MPEP 2144.07).
Accordingly, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have used the dimethenamid-P of Winter in the composition of Maier based on its art recognized suitability for its intended use as an herbicide for herbicidal compositions. One would have had a reasonable expectation of success with the combination because Winter teaches combinations of L-glufosinate and dimethenamid-P may be formulated as microemulsions.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated the microemulsion taught be Maier and Gao, which comprises L-glufosinate, to comprise dimethenamid-P as the water insoluble pesticide, in view of Winter et al.
Response to Arguments
1) On pages 11-12 (and 13) of their Remarks, applicant argues that “the '276 patent [Maier] does not teach or suggest a branched organosulfate (B.2). Rather, the '276 patent explicitly teaches that microemulsions are highly sensitive systems, in which even minor changes in their composition can lead to phase separation or loss of stability.” Further stating that “[t]he '276 patent therefore offers no incentive or apparent reason for a skilled person to further modify the microemulsion of the '276 patent by adding an additional component”.
The Examiner disagrees.
The cited primary reference, Maier, discloses a surfactant system with the purpose of providing stable liquid formulations, e.g., microemulsions:
“The surfactant system makes possible the preparation of stable liquid formulations for active compounds, the formulations comprising … The formulations are either single-phase aqueous or aqueous-organic formulations of type-(a) active compounds, for example glufosinate-ammonium or glyphosate(salts), or they are microemulsions of type-(a) and type-(b) active compounds” [abstract].
Specifically, the surfactant system provides formulations stable to the addition of additional components. This is evidenced, at lines 4-21 of column 3 (cited in Remarks on pages 11-12 and O.A. at page 4) and can be further understood at lines 1-8 of column 4 and lines 5-18 of column 14.
At lines 4-21 of column 3, Maier indeed discloses “that microemulsions are “critical systems insofar as they are usually sensitive toward variations in temperature and/or in exchange or in the addition of individual components.” However, this is in reference to microemulsions of the prior art and Maier continues on to say “[h]itherto, it is difficult to predict if stable microemulsions can be prepared for an individual case, and in most cases special coordination of all components and ratios is required. There is therefore in principle a demand for surfactant systems which make preparation of Stable micro emulsions possible.” Therefore, a skilled artisan would have understood the surfactant system of Maier, which provides stable liquid formulations (e.g., microemulsions), to have addressed the stability issues of the prior art.
This is further evidenced at lines 1-8 of column 4 Maier welcomes the addition of further components, such as other surfactants and wetting agents:
“The surfactant system or the corresponding formulations may additionally optionally contain further components, for example other surfactants or other active compounds and/or auxiliaries which are customary in crop protection, such as inert materials, tackifiers, wetting agents, dispersants, emulsifiers, penetrants, preservatives, antifreeze agents, solvents, fillers, carriers, colorants, antifoams, evaporation inhibitors and pH and viscosity regulators.”
Furthermore, at lines 5-18 of column 14 Maier discloses the surfactant systems creates microemulsions that are stable even when combined with surfactants known to destabilize microemulsions:
“Anionogenic surfactants, such as alkyl polyglycol ether sulfates or alkyl polyglycol ether carboxylates on their own, i.e. without the surfactant system according to the invention, do not give microemulsions for mixtures of (a) and (b), since their presence has a “destabilizing” effect … However, surprisingly, even alkyl polyglycol ether sulfates or alkyl polyglycol ether carboxylates give, in combination with sufficient hydrophobic primary N-alkylamines as basic
component and acidic phosphoric esters as anionogenic component in accordance with component mixture (d), thermodynamically stable finished formulations (Examples IX and X).”
Therefore, a skilled artisan would have understood that microemulsions using the surfactant system of Maier would have been stable to addition of other surfactants because Maier discloses: the liquid formulations (e.g., microemulsions) with the surfactant system are stable, suggests the surfactant system solves the stability issues of the prior art, welcomes additional components such as surfactants and wetting agents, and discloses the surfactant system provides a stable microemulsion even in the presence of destabilizing surfactants.
2) On page 12 of their Remarks, Applicant argues that “The '276 patent clearly states that the emulsifiers, wetting agents, and dispersants, in most cases, are unsuitable for preparing glufosinate and/or glyphosate containing microemulsions.” Applicant cites the ‘279 patent (Maier) at column 2, lines 56-60 for support.
The Examiner disagrees.
The cited portion of Maier reads:
“Examples of preparing pesticidal microemulsions are given, inter alia, in the publications WO-A-9006681, WO-A-93.14630, EP-A-016O182, EP-A-0533057, EP-A- 499587, EP-A-500401, EP-A-432062, DE-A-3624910, DE-A-3235612, EP-A-648414 and EP-A-617894.
However, the microemulsions in question contain neither glufosinate-ammonium nor glyphosate(salts), and the emulsifiers, wetting agents and dispersants disclosed in the abovementioned publications are in most cases unsuitable for preparing glufosinate-and/or glyphosate-containing microemulsions, their use results in instable formulations, characterized by strong turbidity and subsequent phase separation.”
This section is in reference to the microemulsions of the prior art, not microemulsions comprising the surfactant system of Maier. Furthermore, this section does not disclose which of the emulsifiers, wetting agents and dispersants would be unsuitable for a microemulsions comprising the surfactant system of Maier.
3) On page 12 of their Remarks, Applicant argues that “Although sulfate-type surfactants are not excluded in the teaching of the '276 patent, they are merely optional surfactants. Therefore, a skilled person would not have considered combining different sulfate-type surfactants, let alone the specifically claimed combination.”
The Examiner disagrees.
While the Genapol LRO is (polyoxyethylene lauryl ether sodium sulfate) is optional to the formulations disclosed by Maier, it is nevertheless specifically desired by Maier. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have combined it with the microemulsions disclosed by Maier.
4) On pages 12 and 13 of their Remarks, Applicant argues that “The deficiencies of the '276 patent [Maier] are not cured by WO '281 [Gao], which merely discloses the use of certain surfactants, such as sodium 2-ethylhexyl sulfate (branched organosulfate B.2), among others, for improving the superspreading properties of silicone based adjuvants.”
The Examiner disagrees.
To clarify the reasoning for selecting 2-ethylhexyl sulfate of Gao (i.e., the elected species of B.2), the Examiner looks to the examples of Gao. In the examples, Gao discloses that RHODAPON BOS (2-ethylhexyl sulfate; Gao at p. 11, line 2) in combination with the silicone based adjuvant “showed lower dynamic surface tension values than that of either individual component” (i.e., synergy). Thus, Gao does not merely disclose the use of 2-ethylhexyl sulfate among others, but specifically desires 2-ethylhexyl sulfate for its synergy.
5) On page 12 of their Remarks, Applicant argues that Gao discloses an adjuvant, not an agrochemical formulation and that Gao is completely silent on the compatibility of the disclosed adjuvants on a microemulsions comprising water-soluble and water-insoluble pesticides.
These arguments are not persuasive. Gao discloses an adjuvant for the delivery of agricultural active ingredients [abstract]. Thus a skilled artisan would have understood that the compositions disclosed therein were meant to added to agrochemical compositions. The arguments with respect to a skilled artisan’s reasonable expectation of success in combining Maier and Gao are discussed above in response “1)”.
6) On pages 13 and 14 of their remarks, Applicant argues the claimed combination of surfactants demonstrate enhanced stability. Applicant cited Examples 1-12 of Tables M.1-M.5 and Comparative Examples 1-5 of Table MC.1 at pages 52-56 of the instant specification.
This argument is not persuasive. The evidence relied upon should establish "that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance." Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat. App. & Inter. 1992) (MPEP 716.02(b)). The comparisons provided in the specification do not clearly establish unexpected results. Applicant has compared the stability of microemulsions comprising the claimed surfactant blend to composition comprising B.1 surfactants without B.2 surfactants (see Comparative Example 5) which did not form microemulsion. However, Applicant has not demonstrated that B.2 surfactants, without B.1 surfactants, are likewise unable to formulate microemulsions comprising a water-soluble and water-insoluble pesticide. Therefore, it is unclear if the formation of a microemulsion is truly unexpected, or the result of combining an additional surfactant with a composition already capable of forming a microemulsion.
Furthermore, comparative example 6, Table MC.1, pages 56-67 demonstrates that a combination of a claimed B.1 surfactant and B.2 surfactant does not necessarily produce a stable microemulsion. As a result, it is unclear what is required of the formulation to provide a stable microemulsion of a water-soluble and water-insoluble pesticide if not a simple combination of the claimed B.1 and B.2 surfactants.
Furthermore, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support" (see MPEP 716.02(d) quoting In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)). In the present case the claims are not commensurate in scope with the evidence.
With respect to the claims under current examination (elected species, i.e., B.1 as sodium lauryl ether sulfate and B.2 as sodium 2-ethylhexyl-sulfate), the claims are not commensurate in scope because the independent claim recites a generic water-soluble pesticide and a generic water-insoluble pesticide. Additionally, there is no explanation as to why a skilled artisan would have expected glufosinate-ammonium and dimethenamid-P of the examples to reasonably represent all water soluble and water insoluble pesticides. Furthermore, the claims do not recite specific amounts of pesticide and surfactants. This is important because the amount of surfactants appears to affect microemulsion stability. See for example comparative example 6 on page 56 (reproduced on page 19 of this office action) which comprises a water soluble pesticide, a water insoluble pesticide, a B.1 surfactant and a B.2 surfactant but does not form a microemulsions. Finally, the claims do not recite the specific solvents, i.e., monopropylenglycol and dipropyleneglycol, of the examples.
Furthermore, without the species election, the claims are even less commensurate in scope with the evidence. In addition to the issues discussed above, the claims are not commensurate in scope because diethanolamine ethylhexyl sulfate and sodium 2-ethylhexyl sulfate do not address the generic recitation of surfactant B.2 in the claims, specifically B.2 wherein Y is selected from 1-10 and not 0. Similarly, the objective evidence which discloses B.1 surfactants having unsaturated R groups and H as RA ,RB , RC , RD , does not appear to encompass B.1 surfactants having a alkenyl, alkynyl as the R group or a CH3 or CH2CH3 as a RA ,RB , RC , or RD group, as instantly claimed.
7) On page 15 of their Remarks, Applicant request rejoinder of claims 4-7 and 20.
The Restriction/Election requirement stands for the reasons of record.
Table 1. Comparative Example 6 from Table MC.1 at pages 56-57 of the instant specification.
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Conclusion
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.
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/C.T.W./ Examiner, Art Unit 1612
/WALTER E WEBB/ Primary Examiner, Art Unit 1612
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