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 .
Status of Claims
Receipt of Applicant’s response, dated 08/19/2025, is acknowledged.
Claims 5-7 and 9 are pending.
Claim 8 is canceled.
Claims 5-6 and 9 are currently amended.
Claims 5-7 and 9 are under consideration in the instant Office action.
OBJECTIONS/REJECTIONS WITHDRAWN
Specification
The objections to the Specification set forth in the Office action dated 05/30/2025 are hereby withdrawn in light of Applicant’s amendments to the Specification.
Claim Objections
The objections to claims 5-6 set forth in the Office action dated 05/30/2025 are hereby withdrawn in light of Applicant’s amendments to the claims.
Claim Rejections - 35 USC § 112(b)
The indefiniteness rejection of claims 5-9 set forth in the Office action dated 05/30/2025 is hereby withdrawn in light of Applicant’s amendments to the claims.
Claim Rejections - 35 USC § 112(d)
The rejection of claim 8 set forth in the Office action dated 05/30/2025 is hereby withdrawn in light of cancellation of the claim.
Claim Rejections - 35 USC § 101
The rejection of claims 5-9 set forth in the Office action dated 05/30/2025 is hereby withdrawn in light of Applicant’s amendments to the claims.
Claim Rejections - 35 USC § 102
The anticipation rejection of claims 5 and 8-9 by Roberts set forth in the Office action dated 05/30/2025 is hereby withdrawn in light of Applicant’s amendments to the claims.
Claim Rejections - 35 USC § 103
The obviousness rejection of claims 5-9 over Roberts set forth in the Office action dated 05/30/2025 is hereby withdrawn in light of Applicant’s amendments to the claims and in favor of the new grounds of rejection set forth below as necessitated by Applicant’s amendments to the claims.
NEW GROUNDS OF OBJECTION/REJECTION
Specification
The abstract of the disclosure is objected to because the sentence constituting the amended abstract is an incomplete sentence and, therefore, is grammatically incorrect.
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 5 and 9 are objected to because of the following:
In the second to last line of claim 5, “and” should be added after the comma at the end of the line for grammatical correctness; and
Spanning lines 1-2 of claim 9, “the agricultural products” should be amended to “the liquid agricultural products” in order to improve the consistency of the claims.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 5-7 and 9 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 5 recites the limitation "the agricultural product" in line 3 and “the liquid agricultural product” in line 4. There is insufficient antecedent basis for each of these limitations in the claim because claim 5 does not earlier recite ‘an agricultural product’ or ‘a liquid agricultural product’ but instead earlier recites ‘liquid agricultural products’ spanning lines 1-2. Thus, it is unclear whether each of ‘the agricultural product’ in line 3 and ‘the liquid agricultural product’ in line 4 refer to one of the liquid agricultural products spanning lines 1-2, all of the liquid agricultural products spanning lines 1-2, or whether something else is meant. Claims 6-7 and 9 are rejected for depending from claim 5 without resolving the ambiguity of claim 5.
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 5-7 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Lescota et al (BG 64469 B1, published 04/30/2005).
Lescota et al teach mixtures of a pesticide composition and water, wherein the pesticide composition comprises a water-soluble pesticide and foam reducing (i.e., antifoam) agents (See entire document, e.g., Bottom of Page 2 and Bottom of Page 3 of English translation). Water-soluble pesticides that can be used include herbicides such as glyphosate (e.g., Page 4 Par. 1 of English translation). Antifoam agents are added to reduce the tendency of the composition to form a foam when added to water and are preferably selected from methylated silicones, polyorganosiloxanes and 2-ethylhexanol (e.g., Bottom of Page 2 and Page 4 Par. 7 of English translation).
The specific combination of features claimed is disclosed within the broad generic ranges taught by Lescota et al but such “picking and choosing” within several variables does not necessarily give rise to anticipation (Corning Glass Works v. Sumitomo Elec., 868 F.2d 1251, 1262 (Fed. Circ. 1989)). Where, as here, the reference does not provide any motivation to select this specific combination of variables of a pesticide composition/water mixture comprising glyphosate as the water-soluble pesticide and methylated silicones, polyorganosiloxanes and 2-ethylhexanol as antifoam agents, anticipation cannot be found.
That being said, however, it must be remembered that “[w]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious” (KSR v. Teleflex, 127 S.Ct. 1727, 1740 (2007) (quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976)). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious,” the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 U.S.C. 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ” (KSR at 1741). The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton” (Id. at 1742).
Consistent with this reasoning, it would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, based on the prior art disclosure of Lescota et al to provide a pesticide composition/water mixture comprising glyphosate as the water-soluble pesticide and methylated silicones, polyorganosiloxanes and 2-ethylhexanol as antifoam agents, wherein the antifoam agents are added to the pesticide composition in order to reduce the tendency of the composition to form a foam when added to water, and arrive at the method of instant claims 5-7 and 9.
Conclusion
No claims are allowable.
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.
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/K.E.O./Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619