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 .
Applicant’s arguments, filed 04/27/2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
In view of Applicants’ amendment to remove the recitation of the PPO inhibitor flumioxazin, as provisionally elected in the response dated 09/15/2025, the examiner is now examining the residual control agent species of imazapic, imazapyr, or imazethapyr.
Applicant’s arguments with respect to the teachings of Dayan are moot at this time, as Dayan is no longer cited in the prior art rejection as necessitated by amendment. Applicants argument that it would not have been obvious to modify Dayan with the teachings of Beste are also moot at this time, as the combination is no longer relied upon in the prior art rejection as necessitated by amendment.
Claim Status
Claims 1-43 are pending.
Claims 1-32 are withdrawn.
Claim Objections
Claim 41 is objected to because of the following informalities: “of” is missing in line 3 between burndown agent and about. Appropriate correction is required.
Claim 43 is objected to because of the following informalities: “of” is missing in line 2 between burndown agent and about. Appropriate correction is required.
Claim Rejections - 35 USC § 103
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.
Claims 33, 35, 37, 39, and 41-43, are rejected under 35 U.S.C. 103 as being unpatentable over Corbett et al (US 20220000106 A1, hereinafter “Corbett”, cited on IDS dated 11/13/2023).
Corbett teaches herbicidal compositions that include at least one glutamine synthase inhibitor and at least one fatty acid or carboxylic acid compounds for the method of controlling undesirable vegetation comprising applying the composition onto or around the undesirable vegetation (abs, ¶¶ 5, 13, claim 11). Undesirable vegetation includes annual and perennial broadleaf weeds and greases (¶ 11). The glutamine synthase inhibitor is glufosinate (claim 2). The fatty acid or carboxylic acid compound is pelargonic acid (claim 3). The composition further comprises at least one acetolactate synthase (ALS) inhibitor including imazapic, imazapyr, imazethapyr, etc. (¶ 25, claims 5, 7, 15, 18). Glufosinate may be included at about 0.01-10 v/v% or 5-15 v/v%; pelargonic acid may be included at about 0.01-15 v/v%; and the ALS inhibitor at about 0.05-35.0 v/v% (¶¶ 8, 19, 23, 29-31, claim 15). In embodiments, the fatty acid to glutamine synthase inhibitor has a weight ratio 12:1 to about 1:1, including 6:1 to about 1:1 and 4:1 to about 1:1 (¶ 24). The herbicidal compounds provided herein exhibit accelerated action or a synergistic effect on undesirable vegetation and may effect damage more quickly in comparison with solo applications of the herbicidal compounds (¶ 15). The synergistic effect permits a reduction of the application rates of the individual herbicidal compounds, a higher and longer efficacy at the same application rate, the control of undesirable vegetation species which are tolerant or resistant to individual herbicides or to a number of other herbicides, an extension of the period of application and reduction in the number of individual applications required and, as a result for the user, economically and ecologically advantageous control of undesirable vegetation (¶ 15). When the glutamine synthetase inhibitor is combined with a fatty acid herbicide as provided herein, a synergistic effect is observed and effective, sustained burndown of undesirable vegetation is achieved (¶¶ 22, 67, table 1).
Regarding claim 33, it would have been obvious to formulate a composition comprising glufosinate, pelargonic acid, and at least one acetolactate synthase (ALS) inhibitor including imazapyr, imazapyr, imazethapyr, etc.
Regarding the method, it would have been obvious to use the composition made obvious above for the method of controlling annual and perennial broadleaf weeds and grasses by applying the composition onto or around the undesirable vegetation, as taught by Corbett.
Regarding claim 35, glufosinate is made obvious above, thereby meeting the claimed limitation.
Regarding claim 37, it would have been obvious to select one or more of imazapic, imazapyr, and imazethapyr, as the residual control agent, as taught by Corbett, thereby meeting the claimed limitation.
Regarding claim 39, while Corbett does not specifically teach Applicants’ elected burndown agent of ammonium nonanoate, the examiner notes that the prior art reference will be used to its fullest extent as applied to the instantly claimed limitations. Therefore, where pelargonic acid is made obvious above, the limitation is met.
Regarding claim 41, it would have been obvious to formulate the composition with a weight ratio of post-emergent herbicidal active agent (i.e., glufosinate) to the burndown agent (i.e., pelargonic acid) with a weight ratio ranging from 1:12 to about 1:1, as motivated by Corbett. 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).
Regarding claim 42, where the combination in the method made obvious above is applied to control undesirable annual and perennial grass and broadleaf weeds, it would have been obvious to apply the composition to any area in need of weed control, including those areas instantly claimed.
Regarding claim 43, where Corbett teaches pelargonic acid may be included at about 0.01-15 v/v% and the ALS inhibitor at about 0.05-35.0 v/v%, while not a weight ratio, the reference broadly teaches ratios of the two components in an herbicidal composition were known, each having a weight. When adjusting the volume percentages within the disclosed ranges, the skilled artisan would recognize that the weight ratio of the two components will vary accordingly, and it would have been well within the relative skills of the skilled artisan to have routinely optimized the weight ratio of the components in order to achieve desired formulation properties such as for various application rates, specific vegetation to be controlled, etc. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A).
Claims 34, 36, and 40, are rejected under 35 U.S.C. 103 as being unpatentable over Corbett et al (US 20220000106 A1, hereinafter “Corbett”), in view of Winter et al (US 20210022345 A1, hereinafter “Winter”).
Corbett is discussed above and while teaching a v/v% of components, the reference does not appear to teach the components in terms of their wt%, nor the particular weight ratio of claim 40.
Winter teaches herbicidal mixtures and their methods and uses for controlling undesirable vegetation comprising L-glufosinate and at least one herbicidal compound II selected from imazapic, imazapic ammonium, imazapyr, imazapyr isopropylammonium, imazethapyr, imazethapyr ammonium, etc. (abs). The weight ratio of glufosinate to compound II is 1000:1 to 1:500, 400:1 to 1:40, more preferably 500:1 to 1:250, in particular from 200:1 to 1:20, even more preferably from 100:1 to 1:10, most preferably 50:1 to 1:5 (¶ 17). The mixtures give, after two-to-tenfold dilution, active substance concentrations of from 0.01 to 60% by weight, preferably from 0.1 to 40%, in the ready-to-use preparations (¶ 111). Further pesticides may be added (¶ 112).
Regarding claims 34 and 36, where Winter teaches compositions comprising glufosinate and imazapic, imazapyr, imazethapyr, etc., in a weight ratio of 1000:1 to 1:500, with a total wt% of active agent from 0.01 to 60 wt%, the resulting amount of glufosinate and the amount of imazapic, imazapyr, imazethapyr, etc., overlaps the claimed ranges. Therefore, it would have been obvious to modify the amount of each component within the known ranges suitable for herbicidal compositions. 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). Further, it would have been well within the relative skills of the skilled artisan to have routinely optimized the amount of each component to order to achieve desired formulation properties such as for various application rates, specific vegetation to be controlled, etc. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A).
Regarding claim 40, it would have been obvious to modify Corbett by including glufosinate and imazapyr, imazapyr, imazethapyr, etc., in known weight ratios, such as from 1000:1 to 1:500, 400:1 to 1:40, more preferably 500:1 to 1:250, in particular from 200:1 to 1:20, even more preferably from 100:1 to 1:10, most preferably 50:1 to 1:5, as taught by Winter, overlapping the claimed range. 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). Further, it would have been well within the relative skills of the skilled artisan to have routinely optimized the weight ratio of the components to order to achieve desired formulation properties such as for various application rates, specific vegetation to be controlled, etc. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A).
Claim 38 is rejected under 35 U.S.C. 103 as being unpatentable over Corbett et al (US 20220000106 A1, hereinafter “Corbett”), in view of Beste et al (US 6503869 B1, hereinafter Beste).
Corbett is discussed above but do not teach a wt% of burndown agent.
Beste teaches 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, imazapic, imazapyr, imazethapyr, etc. (col 3 ln 36-38, tables 1-3). Concentrations of the post-emergent herbicide in the herbicidal composition of the invention will vary depending on the herbicide and the weeds to be controlled but the concentration of the compound of formula (I) in the final herbicidal composition is preferably between from about 0.10 to about 3.0% by weight of the herbicidal composition (col 3 ln 12-25).
Regarding claim 38, where Corbett teaches pelargonic acid, a burndown agent, was known to have synergy with glufosinate, imazapic, imazapyr, imazethapyr, etc., it would have been obvious to include pelargonic acid in an amount ranging from about 0.10 to about 3.0 wt%, as taught by Beste, where both are directed to fatty acid compounds comprising pelargonic acid for the same purpose of enhancing the herbicidal effect of glufosinate, etc.
Claim 43 is rejected under 35 U.S.C. 103 as being unpatentable over Corbett et al (US 20220000106 A1, hereinafter “Corbett”), in view of Beste et al (US 6503869 B1, hereinafter Beste) and Winter et al (US 20210022345 A1, hereinafter “Winter”).
Corbett is discussed above, and purely arguendo, if somehow it would not have been obvious to routinely optimize the weight ratio of claim 43 in view of Corbett, the following applies.
Beste and Winter are discussed above.
Regarding claim 43, the limitation is discussed above, and purely arguendo, if somehow it would not have been obvious to have routinely adjusted the weight ratio of the components in view of Corbett, where Beste teaches ammonium nonanoate (i.e., ammonium pelargonate) was known to be included from about 0.10 to about 3.0 wt%, and further teaches it may be used in combination with any herbicidal active where the amounts can vary depending on the herbicide and the weeds to be controlled, it would have been obvious to adjust the amount within the known wt% of pelargonate containing burndown agents as taught by Beste, and the amount of glufosinate and ALS inhibitor within the ranges taught by Winter, thereby resulting in a weight ratio overlapping the claimed ranges. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A).
Claims 33, 35, 37, 38, 39, and 41-43, are rejected under 35 U.S.C. 103 as being unpatentable over Corbett et al (US 20220000106 A1, hereinafter “Corbett”), in view of Beste et al (US 6503869 B1, hereinafter Beste).
Corbett is discussed above but does not appear to teach Applicants’ elected burndown agent of ammonium nonanoate.
Beste is discussed above.
It would have been obvious to substitute ammonium nonanoate for pelargonic acid of Corbett, where both were known to be used to show a synergistic effect when combined with herbicidal active agents including glufosinate, such as by enhancing their effectiveness, faster visual phytotoxic response, better weed control, and use of less-post treatment herbicide, as taught by Beste. See MPEP 2143(I)(A) and (B).
The additional limitations of claims 33, 35, 37, 39, and 42, are rejected for the same reasons discussed above, as applied to each and every claimed limitation.
Regarding claim 38, it would have been obvious to include ammonium nonanoate in an amount ranging from about 0.10 to about 3.0 wt%, as taught by Beste, where these amounts were known to have synergistic action with glufosinate, imazapic, imazapyr, imazethapyr, etc.
Regarding claim 41, it would have been obvious to formulate the composition made obvious above with a weight ratio of glufosinate to ammonium nonanoate ranging from 1:12 to about 1:1, where these ratios were known to be suitable for synergistic combinations of glufosinate with pelargonate containing burndown agents, as taught by Corbett, overlapping the claimed range. 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).
Regarding claim 43, where Corbett teaches the pelargonic acid containing burndown agent may be included at about 0.01-15 v/v% and the ALS inhibitor at about 0.05-35.0 v/v%, while not a weight ratio, the reference broadly teaches ratios of the two components in an herbicidal composition were known, each having a weight. When adjusting the volume percentages of ammonium nonanoate made obvious above within the suitable ranges for pelargonic acid containing burndown agents, the skilled artisan would recognize that the weight ratio of the two components will vary accordingly, and it would have been well within the relative skills of the skilled artisan to have routinely optimized the weight ratio of the components in order to achieve desired formulation properties such as for various application rates, specific vegetation to be controlled, etc. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A).
Claims 34, 36, 40, and 43, are rejected under 35 U.S.C. 103 as being unpatentable over Corbett et al (US 20220000106 A1, hereinafter “Corbett”) and Beste et al (US 6503869 B1, hereinafter Beste), in view of Winter et al (US 20210022345 A1, hereinafter “Winter”).
Corbett and Beste are discussed above, and while teaching a v/v% of components, the reference does not appear to teach the components in terms of their wt%, nor the particular weight ratio of claim 40. Further, purely arguendo, if somehow it would not have been obvious to routinely optimize the weight ratio of claim 43 in view of Corbett, the following applies.
Winter is discussed above.
Regarding claims 34 and 36, it would have been obvious to modify the amounts of glufosinate and imazapic, imazapyr, imazethapyr, etc., within known the known wt% amounts taught by Winter, for the same reasons discussed above. See MPEP 2144.05(I) and MPEP 2144.05(II)(A).
Regarding claim 40, it would have been obvious to modify Corbett by including glufosinate and imazapyr, imazapyr, imazethapyr, etc., in known weight ratios, such as from 1000:1 to 1:500, 400:1 to 1:40, more preferably 500:1 to 1:250, in particular from 200:1 to 1:20, even more preferably from 100:1 to 1:10, most preferably 50:1 to 1:5, as taught by Winter for the same reasons discussed above, overlapping the claimed range. See MPEP 2144.05(I) and MPEP 2144.05(II)(A).
Regarding claim 43, the limitation is discussed above, and purely arguendo, if somehow it would not have been obvious to have routinely adjusted the weight ratio of the components in view of Corbett, where Beste teaches ammonium nonanoate (i.e., ammonium pelargonate) was known to be included from about 0.10 to about 3.0 wt%, and further teaches it may be used in combination with any post-emergent active where the amounts can vary depending on the herbicide and the weeds to be controlled, it would have been obvious to adjust the amount within the known wt% of ammonium nonanoate as taught by Beste, and the amount of glufosinate and ALS inhibitor within the ranges taught by Winter, thereby resulting in a weight ratio overlapping the claimed ranges. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A).
Conclusion
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 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
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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