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 .
Claims 1-9, 11-12, 14-24, and 26-27 are pending in this application.
Claims 5-8 and 11-12, 14-24, and 26-27 stand withdrawn from further consideration as being directed to non-elected subject matter. Claims 1-4 and 9 will presently be examined to the extent that they read on the elected subject matter of record, the species “a plant extract having herbicidal activity” of elected invention group I (composition comprising minicell and bioactive agent having herbicidal activity). See the restriction requirement of 8/6/2025 and election of 8/28/2025 for complete details.
It is noted that “minicell” is described in the specification in various paragraphs, e.g., paragraphs 61 and 86-123. In short, “minicell” encompasses “derivatives of eubacterial cells that lack a chromosome; derivatives of archaebacterial cells that lack their chromosome(s); and anucleate derivatives of eukaryotic cells that lack a nucleus and consequently a chromosome.” (paragraph 61).
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 1-4 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2018/2011611 in view of Burwood-Taylor and Dayan et al.2
WO 2018/201161 discloses an anucleated cell-based platform for the encapsulation and delivery of agricultural compounds, comprising an intact anucleated cell, having within said cell at least one non-expressed agricultural compound (claim 1), wherein the non-expressed agricultural compound can be a herbicide (claims 21, 23). The anucleated cell can be a bacterially derived minicell (claims 4-19). Formulation as a liquid, powder, or foliar spray is disclosed (claim 53). The term “anucleated cell” refers to a cell that lacks a nucleus and also lacks chromosomal DNA, which can be described as “achromosomal” (paragraph 76). Peppermint oil, neem oil, and Chenopodium ambrosiodes (medicinal herb) extract are included among suitable agrochemical compounds (paragraph 190). Encapsulation of the herbicide foramsulfuron is exemplified (Figures 11B, 11C; paragraphs 324-328). Encapsulation protects the active compounds from the environment and external factors that cause degradation, as well as controls the release of active compounds (paragraphs 171, 173, 181). Minicell “protects the compounds against volatilization, photolytic degradation, and hydrolysis” (paragraph 181). See also paragraphs 30, 171-185, and Figures 15A and 15B for additional encapsulation teachings.
Additionally, WO 2018/201161 provides the following disclosure regarding ratio of agricultural compound to minicell –
Weight ratio of agricultural compound to minicell includes 1:4 and 4:1, as well as broader ranges such as 1:50 to 50:1, 1:30 to 30:1, or 1:10 to 10:1 (paragraph 271).
Herbicide is present in an amount of about 0.1 to 90 wt%, 1-70 wt%, 2-60 wt%, 5-50 wt%, 10-45 wt%, or 15-40 wt5, based on the total weight of the minicell within which the herbicide is encapsulated (paragraph 268).
Example 8 discloses a protocol for encapsulation of pesticides into minicell, wherein equal volume of minicell solution is mixed with pesticide solution (paragraph 320; see also entire Example 8).
Burwood-Taylor discloses that the minicell platform by AgroSpheres (i.e., the Applicant of WO 2018/201161, supra) uses nanotechnology to encapsulate and deliver both biological and synthetic chemical pesticides (page 2). Minicells shield encapsulated active ingredients from heat, UV light, microbes and enzymes that would otherwise quickly degrade them, and they also enable the slow, sustained release of these active ingredients to maximize their impact (id.). Minicells will substantially improve pesticide performance while reducing dosage and environmental impact (id.).
Dayan et al. disclose that essential oils have shown potential as herbicides but these natural herbicides are fast acting and their efficacy is limited by the fact that they most likely volatilize relatively quickly (page 4025, left column). Alternative formulations, such as microencapsulation, are being developed to reduce dosage, increase duration of efficacy by reducing volatilization, and slow down rate of degradation in the environment (id.). Peppermint oil contains 2-phenethyl propionate, menthol, and menthone, all of which are herbicidal (Figure 2.2; section 2.1.4.3). Clove oil contains eugenol, and clove oil is commercialized for weed control (section 2.1.4.2). Citronella oil contains geraniol, and citronella oil can provide protection against some weeds (section 2.1.4.5). Natural oil from neem and essential oils from oregano and basil are disclosed as herbicidal; oils from oregano and basil contain thymol (section 2.1.4.6). Essential oils such as neem oil, thyme oil, eugenol, and various plant extracts are also known to possess insecticidal properties, and thyme oil (contains thymol) and neem oil extract are known to possess fungicidal properties (sections 3 to 4.1.2 on pages 4027-4030).
WO 2018/201161 does not explicitly exemplify an agrochemical composition comprising a minicell and a plant extract having herbicidal activity. However, WO 2018/201161 teaches that its agrochemicals include herbicides, and WO 2018/201161 further teaches that its agrochemicals include extracts of plants such as peppermint oil and neem oil, both of which are known to possess herbicidal activity (Dayan et al.).
The ordinary skilled artisan would have been motivated to formulate and encapsulate a plant extract that has herbicidal activity such as the essential oils clove oil, peppermint oil, neem oil, and components of essential oils, geraniol, eugenol, and thymol, because herbicidal activity of such plant extract materials is known to be limited by their relatively quick volatilization, whereas minicell is known to protect against volatilization and degradation (WO 2018/201161).
Claim 1 requires a mixture ratio of the bioactive agent and the minicell of 1:4 to 4:1 in volume to volume. WO 2018/201161 explicitly discloses this feature in Example 8 by teaching a 1:1 volume mixture.
Claim 1 also requires, “wherein the bioactive agent in the presence of the minicell has at least 5% higher herbicidal activity than the bioactive agent alone over a week after treatment.” WO 2018/201161 teaches that encapsulation within a minicell protects the active compounds from the environment and external factors that cause degradation, as well as controls the release of active compounds (paragraphs 171, 173) and minicell “protects the compounds against volatilization, photolytic degradation, and hydrolysis” (paragraph 181). WO 2018/201161 further teaches improved efficacy of agricultural compounds “so that amounts of the agricultural compound can be used less” (paragraph 276). Burwood-Taylor teaches that minicells shield encapsulated active ingredients from heat, UV light, microbes and enzymes that would otherwise quickly degrade them, and they also enable the slow, sustained release of these active ingredients to maximize their impact; and Burwood-Taylor further teaches that minicells will substantially improve pesticide performance while reducing dosage and environmental impact. With respect to plant extract or botanical blends, Dayan et al. teach that essential oils have shown potential as herbicides but they are fast acting and their efficacy is limited by the fact that they most likely volatilize relatively quickly.
As a result, the ordinary skilled artisan would have recognized that efficacy of the elected “plant extract having herbicidal activity” would be improved when formulated and encapsulated by minicell over a week after treatment. Expected benefits of protection against volatilization, photolytic degradation, hydrolysis, microbes, enzymes, improved efficacy, and sustained release of the active compound to maximize their effect would have led to an expectation of substantial improvement of herbicidal performance (Burwood-Taylor). When there is reduced degradation, reduced loss from evaporation, and sustained release of a fast acting and volatile herbicide such as essential oil herbicides, increase of at least 5% higher herbicidal activity would have been expected.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, because every element of the invention and the claimed invention as a whole have been fairly disclosed or suggested by the teachings of the cited references.
Applicant’s arguments filed on 3/3/2026 have been given due consideration, but they were deemed unpersuasive.
Applicant argues that the amendatory mixture ratio of 1:4 to 4:1 in volume to volume is not disclosed by the cited references. However, this is erroneous as discussed above. WO 2018/201161 clearly teaches 1:1 volume to volume mixture ratio, as well as weight ratio and percentage of herbicide based on the total weight of the minicell within which the herbicide is encapsulated – see the full discussion on page 4 of this Office action.
Applicant also argues that results of the present application support the nonobviousness of the claims. Applicant refers to specification Example 4 and states, “Surprisingly, AG-loaded minicells outperformed not only the AG herbicide alone, but also a combination of two different herbicides (AG+WS).” Applicant further states, “AG-loaded minicells showed 60% control … which was 10% higher than that achieved with AG or WS, either alone or together.” However, it must be noted at the outset that “AG” or “Agro Gold” is not identified in the specification as to its exact contents. Thus, it cannot be determined whether data obtained with Agro Gold or AG is data pertaining to the elected subject matter. Regarding Example 4, the 10% higher activity that Applicant points out is data for 6 DAT, i.e., this data does not read on the currently pending claims, which requires improvement “over a week after treatment.” At 15 DAT, Example 4 actually shows the same activity for AG alone and AC + AG, i.e., Example 4 shows there is no improvement in herbicidal activity over a week after treatment.
Applicant also states that Example 5 shows that AC + AG had 15% higher herbicidal efficacy than AG alone at 8 DAT. Again, it is noted that “AG” or “Agro Gold” is not identified in the specification as to its exact contents; and consequently, it cannot be determined whether data obtained with Agro Gold or AG is data pertaining to the elected subject matter. Assuming arguendo that AG falls within the elected species, “a plant extract having herbicidal activity,” the Examiner’s position that Applicant has not established unexpected result. Both WO 2018/201161 and Burwood-Taylor teach improvement in pesticidal performance, as discussed above. One having ordinary skill in the art would have expected higher herbicidal activity “over a week after treatment” with minicell-encapsulated herbicides because of reduced degradation during that period of time, reduced loss from evaporation during that period of time, and sustained release of a fast acting and volatile herbicide such as essential oil herbicides. The burden is on Applicant to establish unexpected result. Here, the prior art provides an expectation of higher herbicidal activity, and Applicant has not established that the higher activity shown in any example is unexpected even in view of the expected higher activity due to reduced degradation over 7 days or more, reduced loss from evaporation over 7 days or more, and sustained release of a fast acting and volatile herbicide such as essential oil herbicides over 7 days or more.
For these reasons, Applicant’s arguments are deemed unpersuasive, and this ground of rejection is maintained.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-4 and 9 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4, 8-10, 12, and 15-34 of copending Application No. 17/788,577 (reference application) in view of WO 2018/201161, Burwood-Taylor, and Dayan et al. Although the claims at issue are not identical, they are not patentably distinct from each other because of the following reasons.
Claims of the reference application are directed to a composition comprising a minicell encapsulating an essential oil, wherein the minicell can be derived from a bacterial cell, and the essential oil includes eugenol, geraniol, genistein, thymol, pyrethrum, carvacrol (see claims 1, 3, and 8, 10 in particular). Minicell and encapsulation by minicell stabilizes essential oils and reduces thermal and oxidative degradation of essential oils (claims 15-26). Minicell and essential oil are present in a weight to weight ratio of about 5:1 to about 1:5 (claim 1) or about 1:1 (claim 2).
Teachings of WO 2018/201161, Burwood-Taylor, and Dayan et al. were previously discussed in this Office action (pages 3-5), and the discussions there are incorporated herein by reference.
The ordinary skilled artisan would have found it obvious that the essential oil of the claims of the reference application encompasses extracts from plants such as clove oil, peppermint oil, neem oil, eugenol, geraniol, and thymol, which are expected to possess herbicidal activity.
Claim 1 of the instant application requires a mixture ratio of the bioactive agent and the minicell of 1:4 to 4:1 in volume to volume. Reference claims 1-2 disclose that minicell and essential oil can be present in a weight to weight ratio of about 5:1 to about 1:5 or 1:1. This is suggestive of the 1:4 to 4:1 volume to volume ratio, and moreover, WO 2018/201161 explicitly discloses this feature in Example 8 by teaching a 1:1 volume mixture.
Claim 1 of the instant application also requires, “wherein the bioactive agent in the presence of the minicell has at least 5% higher herbicidal activity than the bioactive agent alone over a week after treatment.” WO 2018/201161 teaches that encapsulation within a minicell protects the active compounds from the environment and external factors that cause degradation, as well as controls the release of active compounds (paragraphs 171, 173) and minicell “protects the compounds against volatilization, photolytic degradation, and hydrolysis” (paragraph 181). WO 2018/201161 further teaches improved efficacy of agricultural compounds “so that amounts of the agricultural compound can be used less” (paragraph 276). Burwood-Taylor teaches that minicells shield encapsulated active ingredients from heat, UV light, microbes and enzymes that would otherwise quickly degrade them, and they also enable the slow, sustained release of these active ingredients to maximize their impact; and Burwood-Taylor further teaches that minicells will substantially improve pesticide performance while reducing dosage and environmental impact. With respect to plant extract or botanical blends, Dayan et al. teach that essential oils have shown potential as herbicides but they are fast acting and their efficacy is limited by the fact that they most likely volatilize relatively quickly.
As a result, the ordinary skilled artisan would have recognized that efficacy of plant extracts (essential oil) having herbicidal activity would be improved when formulated and encapsulated by minicell over a week after treatment. Expected benefits of protection against volatilization, photolytic degradation, hydrolysis, microbes, enzymes, improved efficacy, and sustained release of the active compound to maximize their effect would have led to an expectation of substantial improvement of herbicidal performance (Burwood-Taylor). When there is reduced degradation over 7 days or more, reduced loss from evaporation over 7 days or more, and sustained release of a fast acting and volatile herbicide such as essential oil herbicides over 7 days or more, increase of at least 5% higher herbicidal activity would have been expected.
Applicant argues that the amendatory features of 1:4 to 4:1 volume to volume ratio and “at least 5% higher herbicidal activity than the bioactive agent alone over a week after treatment” are not disclosed by the reference claims. For the reasons already discussed above, those features would have been obvious, and the reference claims as a whole would have been recognized as an obvious variation of the invention set forth in the instant claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-4 and 9 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-18 of copending Application No. 18/257,995 (reference application) in view of WO 2018/201161, Burwood-Taylor, and Dayan et al. Although the claims at issue are not identical, they are not patentably distinct from each other because of the following reasons.
Claims of the reference application are directed to a fungicidal composition comprising a minicell and a bioactive agent, which is an essential oil, wherein the minicell enhances stability and fungicidal activity of said bioactive agent in an environmental stress (claim 1). The minicell is an achromosomal bacterial cell (claim 2). The minicell is capable of encapsulating the bioactive agent within the minicell (claim 3). The essential oil includes eugenol, geraniol, or thymol (claims 4-7). The minicell and active agent can be present in a weight to weight ratio of about 5:1 to 1:5 (claim 8) or about 1:1 (claim 9). See also claims 10-18.
Teachings of WO 2018/201161, Burwood-Taylor, and Dayan et al. were previously discussed in this Office action (pages 3-5), and the discussions there are incorporated herein by reference.
The ordinary skilled artisan would have found it obvious that the essential oil of the claims of the reference application encompasses extracts from plants such as clove oil, peppermint oil, neem oil, eugenol, geraniol, and thymol, which are expected to also possess herbicidal activity.
Claim 1 of the instant application requires a mixture ratio of the bioactive agent and the minicell of 1:4 to 4:1 in volume to volume. Reference claims 8-9 disclose that minicell and essential oil can be present in a weight to weight ratio of about 5:1 to about 1:5 or about 1:1. This is suggestive of the 1:4 to 4:1 volume to volume ratio, and moreover, WO 2018/201161 explicitly discloses this feature in Example 8 by teaching a 1:1 volume mixture.
Claim 1 of the instant application also requires, “wherein the bioactive agent in the presence of the minicell has at least 5% higher herbicidal activity than the bioactive agent alone over a week after treatment.” WO 2018/201161 teaches that encapsulation within a minicell protects the active compounds from the environment and external factors that cause degradation, as well as controls the release of active compounds (paragraphs 171, 173) and minicell “protects the compounds against volatilization, photolytic degradation, and hydrolysis” (paragraph 181). WO 2018/201161 further teaches improved efficacy of agricultural compounds “so that amounts of the agricultural compound can be used less” (paragraph 276). Burwood-Taylor teaches that minicells shield encapsulated active ingredients from heat, UV light, microbes and enzymes that would otherwise quickly degrade them, and they also enable the slow, sustained release of these active ingredients to maximize their impact; and Burwood-Taylor further teaches that minicells will substantially improve pesticide performance while reducing dosage and environmental impact. With respect to plant extract or botanical blends, Dayan et al. teach that essential oils have shown potential as herbicides but they are fast acting and their efficacy is limited by the fact that they most likely volatilize relatively quickly.
As a result, the ordinary skilled artisan would have recognized that efficacy of plant extracts (essential oil) having herbicidal activity would be improved when formulated and encapsulated by minicell over a week after treatment. Expected benefits of protection against volatilization, photolytic degradation, hydrolysis, microbes, enzymes, improved efficacy, and sustained release of the active compound to maximize their effect would have led to an expectation of substantial improvement of herbicidal performance (Burwood-Taylor). When there is reduced degradation over 7 days or more, reduced loss from evaporation over 7 days or more, and sustained release of a fast acting and volatile herbicide such as essential oil herbicides over 7 days or more, increase of at least 5% higher herbicidal activity would have been expected.
Applicant argues that the amendatory features of 1:4 to 4:1 volume to volume ratio and “at least 5% higher herbicidal activity than the bioactive agent alone over a week after treatment” are not disclosed by the reference claims. For the reasons already discussed above, those features would have been obvious, and the reference claims as a whole would have been recognized as an obvious variation of the invention set forth in the instant claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-4 and 9 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of copending Application No. 18/257,982 (reference application) in view of WO 2018/201161, Burwood-Taylor, and Dayan et al. Although the claims at issue are not identical, they are not patentably distinct from each other because of the following reasons.
Claims of the reference application are directed to an insecticidal composition comprising a minicell and a bioactive agent, which includes clove oil, oregano oil, citronella oil, lemongrass oil, eucalyptus oil, thymol, and eugenol (claim 1). The minicell is derived from a bacterial parental cell (claim 2). The minicell is capable of encapsulating the bioactive agent, and the bioactive agent is present within the minicell (claims 3-4). The minicell and the bioactive agent can be present in a weight to weight ratio of about 5:1 to 1:5 or about 1:1 (claims 12-13). See also claims 5-11, 14-15.
Teachings of WO 2018/201161, Burwood-Taylor, and Dayan et al. were previously discussed in this Office action (pages 3-5), and the discussions there are incorporated herein by reference.
The ordinary skilled artisan would have found it obvious that the bioactive agent of the claims of the reference application encompasses extracts from plants such as thyme oil, clove oil, citronella oil, lemongrass oil, eucalyptus oil, thymol, and eugenol, which are expected to also possess herbicidal activity.
Claim 1 of the instant application requires a mixture ratio of the bioactive agent and the minicell of 1:4 to 4:1 in volume to volume. Reference claims 12-13 disclose that minicell and essential oil can be present in a weight to weight ratio of about 5:1 to about 1:5 or about 1:1. This is suggestive of the 1:4 to 4:1 volume to volume ratio, and moreover, WO 2018/201161 explicitly discloses this feature in Example 8 by teaching a 1:1 volume mixture.
Claim 1 of the instant application also requires, “wherein the bioactive agent in the presence of the minicell has at least 5% higher herbicidal activity than the bioactive agent alone over a week after treatment.” WO 2018/201161 teaches that encapsulation within a minicell protects the active compounds from the environment and external factors that cause degradation, as well as controls the release of active compounds (paragraphs 171, 173) and minicell “protects the compounds against volatilization, photolytic degradation, and hydrolysis” (paragraph 181). WO 2018/201161 further teaches improved efficacy of agricultural compounds “so that amounts of the agricultural compound can be used less” (paragraph 276). Burwood-Taylor teaches that minicells shield encapsulated active ingredients from heat, UV light, microbes and enzymes that would otherwise quickly degrade them, and they also enable the slow, sustained release of these active ingredients to maximize their impact; and Burwood-Taylor further teaches that minicells will substantially improve pesticide performance while reducing dosage and environmental impact. With respect to plant extract or botanical blends, Dayan et al. teach that essential oils have shown potential as herbicides but they are fast acting and their efficacy is limited by the fact that they most likely volatilize relatively quickly.
As a result, the ordinary skilled artisan would have recognized that efficacy of plant extracts (essential oil) having herbicidal activity would be improved when formulated and encapsulated by minicell over a week after treatment. Expected benefits of protection against volatilization, photolytic degradation, hydrolysis, microbes, enzymes, improved efficacy, and sustained release of the active compound to maximize their effect would have led to an expectation of substantial improvement of herbicidal performance (Burwood-Taylor). When there is reduced degradation over 7 days or more, reduced loss from evaporation over 7 days or more, and sustained release of a fast acting and volatile herbicide such as essential oil herbicides over 7 days or more, increase of at least 5% higher herbicidal activity would have been expected.
Applicant argues that the amendatory features of 1:4 to 4:1 volume to volume ratio and “at least 5% higher herbicidal activity than the bioactive agent alone over a week after treatment” are not disclosed by the reference claims. For the reasons already discussed above, those features would have been obvious, and the reference claims as a whole would have been recognized as an obvious variation of the invention set forth in the instant claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
For the foregoing reasons, all claims under examination are rejected. No claim is 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 JOHN PAK whose telephone number is (571)272-0620. The Examiner can normally be reached on Monday to Friday from 8:30 AM to 5 PM.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's SPE, Fereydoun Sajjadi, can be reached on (571)272-3311. The fax phone number for the organization where this application or proceeding is assigned is (571)273-8300.
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/JOHN PAK/Primary Examiner, Art Unit 1699
1 Submitted by Applicant in the IDS of 12/4/2023, Foreign patent document, citation no. 170.
2 Submitted by Applicant in the IDS of 12/4/2023, non-patent document, citation no. 221.
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