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 .
Election/Restrictions
Applicant’s election of Group II, claims 33-43, in the reply filed on 09/15/2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Applicant’s election of flumioxazin as the residual control agent, ammonium nonanoate as the burndown agent, and surfactant as the single class of further functional ingredients, in the reply filed on 09/15/2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 1-32 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention/species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 09/15/2025.
Specification
The abstract of the disclosure is objected to for the following reasons:
The abstract recites “The present disclose provides herbicide composition for…”, where “composition” should read “compositions”. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Objections
Claims 40 and 41 are objected to because of the following informalities: “wherein applying a non-selective herbicide” should read “wherein applying the non-selective herbicide”. Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 40 and 43 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 40 recites “causes early burndown symptoms of weeds or undesired plants…”, and it is unclear if the weeds or undesired plants are referring to the “annual and perennial grass and broadleaf weeds” of claim 33, or if these weeds are a different weed or undesired plant. If different, it is unclear how applying the herbicide combination to only annual and perennial grass and broadleaf weeds would also cause burndown symptoms of other weeds or undesired plants the herbicide is not applied to. For purposes of examination, claim 40 is interpreted as “causes early burndown symptoms of the annual and perennial grass and broadleaf weeds…”.
Claim 43 recites “common annual broadleaf weeds,” “common perennial broadleaf weeds,” “common annual grasses,” and “common perennial grasses,” and it is unclear what defines these particular weeds as “common.” For example, a weed or grass that is common to one area, climate, soil type, etc., may not be considered “common” in other areas, climates, soil types, etc. For purposes of examination, any weed or grass evidenced as “common” is interpreted to read on the instant claim.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 33, 35, 36, 39-41, and 43, are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Dayan et al (WO 2021151737 A1, cited on IDS dated 11/13/2023), as evidenced by Colorado State University (Kochia, Bassia scoparia L., retrieved 2025).
Dayan et al disclose synergistic combinations of L-glufosinate (a post emergent herbicidal active, see instant claim 35) and/or salts thereof and flumioxazin (a PPO inhibitor and residual control active agent, see instant claim 7) for controlling undesired plant growth for broad leaved weeds and grass weeds, with working examples comprising applying a combination of glufosinate and flumioxazin against Kochia, a dicotyledonous weed (abs, pg 13 ln 20-26, pg 26). The test period extended from 2 to 21 days after treatment (pg 26). As evidenced by Colorado State University, Kochia is a common annual broadleaf weed (description, quick facts). Glufosinate is both a burn down agent and post emergence herbicidal active agent (pg 8 ln 10-13). Dayan et al disclose that as a rule, the rainfastness of the active compounds in the herbicide combinations is advantageous (pg 13 ln 13-14).
Examiner notes that while Dayan et al do not disclose Applicants’ elected burndown agent, ammonium nonanoate, the cited reference will be used to its fullest extent in rejecting the claims currently presented.
Regarding claim 33, the herbicidal mixture of the method disclosed above comprises glufosinate and flumioxazin, thereby anticipating the instantly claimed method. The Examiner notes that glufosinate acts as both a post emergent herbicide and burndown agent, and flumioxazin is a PPO inhibitor and residual control agent.
Regarding the method of claims 33 and 43, the herbicide composition is applied to control Kochia, a common annual broadleaf weed, as discussed above.
Regarding claim 35, the herbicide composition comprises L-glufosinate.
Regarding claim 36, flumioxazin is a PPO inhibitor, as discussed above.
Regarding claim 39, Dayan et al disclose the herbicidal active agents in the composition have rainfast property.
Regarding claims 40 and 41, where the method anticipated above comprises the same components instantly claimed, and are applied to common annual broadleaf weeds, the functional limitations of wherein the combination causes early burndown symptoms within 30 minutes to about 6 hours, and wherein long-term control efficacy remains effected for at least 15 days, appears to be inherent to the active ingredients in the composition of the method. See MPEP 2112(II) and (III).
Further, the test period for the example of Dayan et al was from 2 to 20 days, where 48% of the Kochia was destroyed, showing efficacy for at least 15 days as instantly claimed.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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 33-43 are rejected under 35 U.S.C. 103 as being unpatentable over Dayan et al (WO 2021151737 A1, cited on IDS dated 11/13/2023), in view of Beste et al (US 6503869 B1).
Dayan et al are discussed above, and while anticipating claims 33, 35, 36, 39-41, and 43 as currently presented, the reference does not teach Applicants’ elected burndown agent, ammonium nonanoate, which is addressed below.
Dayan et al further teach agrochemically active compounds that are different from L-glufosinate and flumioxazin can be included (pg 5 ln 46 to pg 6 ln 4). The combination is applied to harmful or undesired plants, or the area where the harmful or undesired plants grow (pg 5 ln 25-31). It was known to apply the herbicidal composition up to 10 times per Gregorian calendar year, depending on the climate which may cause weeds to grow vigorously at any time of the year, and can be repeated as soon as the previous treatment loses its effectiveness and weeds start to grow (pg 11 ln 29-36). The mixture is usually applied from a predosage device, a knapsack sprayer, a spray tank, etc. (pg 21 ln 21-22).
Beste et al teach post emergent herbicides are generally slow-acting and it was found that the addition of ammonium pelargonate (i.e., ammonium nonanoate) to post emergent herbicides, enhances their effectiveness including faster visual phytotoxic response, better weed control, and use of less-post treatment herbicide (abs). Ammonium pelargonate is a highly water soluble salt which has low toxicity and high biodegradability (col 2 ln 32-35). Any post emergent herbicide, regardless of its mode of action, may be used in combination with ammonium pelargonate, including glufosinate (col 3 ln 36-38, tables 1-3).
Regarding claims 33, 35, and 36, it would have been obvious to further include ammonium nonanoate to the combination of Dayan et al, where ammonium nonanoate was known to increase the effectiveness of post emergent herbicides, providing faster visual phytotoxic response, better weed control, and use of less-post treatment herbicide, as taught by Beste et al.
Regarding the method of claim 33, 35, and 36, it would have been obvious to use the combination made obvious above by Dayan et al and Beste et al for controlling grass and broadleaf weeds, such as Kochia, a common annual broadleaf weed, comprising applying the herbicide composition in an area in need of treatment, such as an area with weeds, as taught by Dayan et al.
Regarding claim 34, it would have been obvious to apply a maintenance composition of the combination, in order to maintain effective weed control over time as weeds start to grow and when the previous treatment begins to lose its effectiveness, as taught by Dayan et al.
Regarding claim 37, it would have been obvious to apply the maintenance composition made above at least 15 days after applying the herbicidal mixture, where Dayan et al teach combinations of glufosinate and flumioxazin were known to be applied up to 10 times per Gregorian calendar year, or at least 36.5 days per application (365/10), falling within the claimed range. Additionally, the combination of glufosinate and flumioxazin was shown to be effective at 20 days, therefore it would have been obvious to administer a maintenance application after that time. Further, it would have been well within the relative skills of the skilled artisan to determine the optimal application regimen in order to maintain weed control depending on the climate and the rate in which weeds grow.
Regarding claim 38, it would have been obvious to apply the combination by spraying the mixture that is stored in a spray container, such as a knapsack sprayer, spray tank, etc., as taught by Dayan et al.
Regarding claim 39, it would have been obvious to formulate the combination made obvious above with rainfast property, where rainfast herbicidal compositions were known to be advantageous, as taught by Dayan et al. Additionally, the skilled artisan would recognize that rainfast properties would be desired for herbicidal mixtures, in order to avoid product washed away by the rain so as to provide effective treatment at the targeted locations.
Regarding claims 40 and 41, where the combination the method made obvious above comprises the same components instantly claimed, and is used to control common annual broadleaf weeds, etc., which are the same as those instantly claimed, the functional limitations of wherein the combination causes early burndown symptoms within 30 minutes to about 6 hours, and wherein long-term control efficacy remains effected for at least 15 days, appears to be inherent to the active ingredients in the composition of the method. See MPEP 2112(II) and (III). Further, Dayan et al show the combination of glufosinate and flumioxazin were effective for 20 days, which would be expected to at least stay the same or increase upon the addition of ammonium nonanoate, which is taught by Beste et al to enhance the effectiveness of post emergent herbicides, including faster visual phytotoxic response.
Regarding claim 42, where the combination in the method made obvious above is applied to control undesirable broad leaved weeds and grass weeds, it would have been obvious to apply the combination to any area in need of weed control, including those areas instantly claimed.
Regarding claim 43, it would have been obvious to apply the combination made obvious above to Kochia (Bassia scoparia), a common annual broadleaf weed, as taught by Dayan et al.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSHUA A ATKINSON whose telephone number is (571)270-0877. The examiner can normally be reached M-F: 9:00 AM - 5:00 PM + Flex.
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/JOSHUA A ATKINSON/Examiner, Art Unit 1612
/MARIANNE C SEIDEL/Primary Examiner, Art Unit 1600