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 .
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.
Claim(s) 1-4, 6, 8-11, and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Olds et al. (US20150296775, from IDS) and further in view of Jentzer et al. (US20140221211, from IDS).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Regarding claims 1-3, Olds teaches water soluble concentrated herbicidal composition(s) comprising 2,4-D dimethyl ammonium salt or 2,4-D choline which reads on applicant’s component (a) (see entire document; abstract; [0003-0010]; [0012]; [0014]; [0022-0024]; Claims 7-11, 14, 16-17), glycerin and co-solvents (see entire document; Tables 1-2; [0063-0064]), and anionic phosphate ester surfactants selected from a group that includes acids or salts of mono and dialkyl phosphate esters and acids of salts of ethoxylated mono and dialkyl phosphate esters (see entire document; [0041-0042]; Claim 3), which reads on applicant’s component (c). Olds also teaches wherein the amount of the pesticides in the concentrate composition is from about 5 to about 90 wt% of the total concentrate which means that if the concentrate weighs 1000 g/L then it can contain over 800 g/L of the pesticidal actives as instantly claimed (see entire document; [0019-0021]; Claims).
Regarding claims 6, Olds teaches wherein their R5 is/can be the claimed C4-C12 alkyl group which is optionally ethoxylated, e.g. Crodafos 810A, etc. (see entire document; [0041-0042]; Claim 3).
Regarding claims 9-10 and 13, Olds teaches wherein their compositions can also comprise betaine surfactants, specifically cocoamidopropyl betaine (see entire document; [0039]) which is a specific surfactant adjuvant of applicant’s formula (III) as instantly claimed and Olds teaches wherein these additional adjuvants/surfactants including applicant’s c) are/can be present in amounts of from about 0.1 to about 20 wt% based on the total weight of the concentrated composition which reads on the ranges of claims 10 and 13 (see entire document; abstract; [0012]; [0041-0044]; claims).
Regarding claim 11, Olds teaches dilution of their herbicidal concentrate compositions from 1 to 2,000 fold in water (See entire document; [0010]; [0015]; [0035]; in addition to sections cited above).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
Regarding claims 1-4, 6, 8-11, and 13 Olds does not teach the use of applicant’s co-solvent of formula (I). However, this deficiency is addressed by Jentzer.
Regarding claims 1-4, 6, 8-11, and 13 specifically claim 1, Jentzer teaches the use of applicant’s esteramides of the claimed formula as solvents, co-solvents, and/or crystallization inhibitors or coalescing agents in phytosanitary formulations (see entire document; Abstract; [0212-0233]; [0021-0025]; claims 1, 5, 9, 13; [0075-0080]; [0084]). The novel esteramides taught by Jentzer read on instant formula (1) of applicant’s component (b) (Claim 1; [0021-0025]). Jentzer teaches formulations comprising the claimed esteramide solvent have, in particular several benefits, specifically the claimed esteramides allow for the solubilization of large amounts of active agents; and lead to an absence of crystallization of the active agents even in demanding conditions; provide good biological activity of the active agents which may be due to good solvation; and provide a safety, toxicology and ecotoxicology profile that is perceived as favorable (see entire document; abstract; [0228]-[0232]). Jentzer teaches the concentrated phytosanitary formulation containing the solvent is intended to be spread over a cultivated field after dilution with water in order to obtain a diluted composition ([0269]). Jentzer teaches suitable active agent examples include 2,4-D ([0235]). Jentzer also teaches that they may use 10 wt% of the esteramide solvent in their compositions ([0262]), but they do not require these specific amounts.
Regarding claim 4, Jentzer teaches wherein their A, can be the instantly claimed R2 is butylene group, and R1, R3, and R4 are all methyl in addition to wherein R1, R3, and R4 are all methyl and R2 is propylene (See entire document; claims 1, 5, 9, 13; [0077-0080]; [0084]).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been prima facie obvious for a person having ordinary skill in the art before the effective filing date to substitute or combine the co-solvent in the herbicidal composition taught by Olds with the claimed esteramides which are clearly taught by Jentzer, specifically the claimed esteramides of claim 4 and arrive at the instantly claimed composition. The ordinarily skilled artisan would have been motivated to do so based on the many benefits of using the solvent taught by Jentzer: solubilization of large amounts of active agents, absence of crystallization, good biological activity due to solvation, and a favorable safety profile. The ordinarily skilled artisan would have a reasonable expectation of success in making this substitution because Jentzer teaches the success of incorporation of these solvents into 2,4-D-containing herbicidal compositions for subsequent dilution and application, which is the intended result for the 2,4-D-containing herbicidal concentrate composition taught by Olds.
Regarding claim 8, the combined references do not specifically teach wherein the total amount of the claimed components b) and c) is in the range of from 0.5 to 7.5 wt% based on the total weight of the concentrate composition. However, as discussed above Olds does teach wherein the surfactants in their water-soluble concentrates can be present in amounts of 0.1 to 20 wt% based on the total weight of the water soluble concentrated composition which reads on the ranges of claim 8 (see entire document; [0040]).
It would have been obvious to one of ordinary skill in the art at the time of the instant filling to have optimized the amount of applicant’s b) and c) and the additional d) to the claimed amounts of the instant claims including new claim 13 and to formulate water soluble concentrate compositions with these amounts because Olds teaches using their surfactants in their water soluble concentrates of the same herbicides, e.g. 2,4-D salts, in amounts which overlap those instantly claimed and it is known, 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. "[W]here 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), and “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
It also would be obvious to optimize the amounts of the surfactants b) and c) to read on each of the newly claimed amounts of b) and c) in order to form effective water soluble concentrates of the claimed actives because each of the claimed components was known in the art to be useful for forming concentrates of the claimed actives and because it is known "[W]here 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), and “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), especially since applicants argued stability/low temperature stability is not actually required by the claimed composition.
It also would have been obvious to select to use applicant’s claimed components a), b), c) and d) together to form the claimed water soluble herbicidal concentrates because each component was known in the art to be useful for forming highly concentrated 2,4-D salt compositions for dilution by users for application in the field at the same rates that are instantly claimed and it is known, “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In reKerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted).
Regarding the newly added amounts of from 0.1 to 5 wt% of the co-solvent of formula (I) which was not previously claimed, it would have been obvious to one of ordinary skill in the art at the time of the instant filling to have optimized the amount of applicant’s b) to the newly claimed range of 0.1 to 5 wt% because Olds teaches using their surfactants in their water soluble concentrates of the same herbicides, e.g. 2,4-D salts, in amounts which overlap those instantly claimed and because Jentzer clearly teaches that using the claimed esteramides as surfactants/co-solvents for formulating active agents including the claimed 2,4-D as concentrates, and wherein these esteramides specifically allow for the solubilization of large amounts of active agents; and lead to an absence of crystallization of the active agents even in demanding conditions; provide good biological activity of the active agents which may be due to good solvation; and provide a safety, toxicology and ecotoxicology profile that is perceived as favorable. Jentzer also teaches that they may use 10 wt% of the esteramide solvent in their compositions ([0262]), but they do not require these specific amounts. However, it would be obvious to combine known surfactants which are effective for forming water soluble/water diluted concentrates of the claimed actives together in order to form additional water soluble concentrates of the claimed active agents because it is known, that it is prima facie obvious to combine two components each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition comprising these components which is to be used for the very same purpose, e.g. forming water soluble concentrates of the same active agents. Thus, it would also be obvious to optimize the amounts of known effective solubilizers for the claimed active agents in order to form the claimed water soluble concentrates. Especially, since applicant’s argued unexpected results are not commensurate in scope with applicants claims which do not actually require the water soluble concentrate to be stable or stable at low temperatures, as is instantly argued. In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Claims 14-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Olds et al. (US20150296775, from IDS) and further in view of Jentzer et al. (US20140221211, from IDS).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Regarding claims 14-16, Olds teaches water soluble concentrated herbicidal composition(s) comprising 2,4-D dimethyl ammonium salt or 2,4-D choline which reads on applicant’s component (a) (see entire document; abstract; [0003-0010]; [0012]; [0014]; [0022-0024]; Claims 7-11, 14, 16-17), glycerin and co-solvents (see entire document; Tables 1-2; [0063-0064]), and anionic phosphate ester surfactants selected from a group that includes acids or salts of mono and dialkyl phosphate esters and acids of salts of ethoxylated mono and dialkyl phosphate esters (see entire document; [0041-0042]; Claim 3), which reads on applicant’s component (c). Olds also teaches wherein the amount of the pesticides in the concentrate composition is from about 5 to about 90 wt% of the total concentrate which means that if the concentrate weighs 1000 g/L then it can contain the claimed from 200 g/L to 800 g/L of the pesticidal actives as instantly claimed as the weight percentages disclosed overlap with the concentration ranges instantly claimed (see entire document; [0019-0021]; Claims). Olds also teaches wherein their R5 is/can be the claimed C4-C12 alkyl group which is optionally ethoxylated, e.g. Crodafos 810A, etc. (see entire document; [0041-0042]; Claim 3).
Regarding claims 14, and 17-20, Olds does not teach wherein applicant’s b) and c) are present in the claimed amounts. However, Olds does teach wherein their surfactants in their water-soluble concentrates can be present in amounts of 0.1 to 20 wt% based on the total weight of the water soluble concentrated composition which reads on the ranges of claims 14, 17-20 (see entire document; [0040]).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
Regarding claims 14-21, Olds does not teach the use of applicant’s co-solvent of formula (I) or wherein R2 is a butylene group or wherein applicant’s b) and c) are present in the claimed amounts. However, these deficiencies are addressed by Jentzer.
Regarding claims 14-21, Jentzer teaches the use of applicant’s esteramides of the claimed formula as solvents, co-solvents, and/or crystallization inhibitors or coalescing agents in phytosanitary formulations (see entire document; Abstract; [0212-0233]; [0021-0025]; claims 1, 5, 9, 13; [0075-0080]; [0084]). The novel esteramides taught by Jentzer read on instant formula (1) of applicant’s component (b) (Claim 1; [0021-0025]). Jentzer teaches formulations comprising the claimed esteramide solvent have, in particular several benefits, specifically the claimed esteramides allow for the solubilization of large amounts of active agents; and lead to an absence of crystallization of the active agents even in demanding conditions; provide good biological activity of the active agents which may be due to good solvation; and provide a safety, toxicology and ecotoxicology profile that is perceived as favorable (see entire document; abstract; [0228]-[0232]). Jentzer teaches the concentrated phytosanitary formulation containing the solvent is intended to be spread over a cultivated field after dilution with water in order to obtain a diluted composition ([0269]). Jentzer teaches suitable active agent examples include 2,4-D ([0235]). Jentzer also teaches that they may use 10 wt% of the esteramide solvent in their compositions ([0262]), but they do not require these specific amounts.
Regarding claim 21, Jentzer teaches wherein their A, can be the instantly claimed R2 is butylene group, and R1, R3, and R4 are all methyl in addition to wherein R1, R3, and R4 are all methyl and R2 is propylene (See entire document; claims 1, 5, 9, 13; [0077-0080]; [0084]).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been prima facie obvious for a person having ordinary skill in the art before the effective filing date to substitute the co-solvent or combine the co-solvent instantly claimed (esteramides which are clearly taught by Jentzer, specifically the claimed esteramides of claim 4) into the herbicidal compositions taught by Olds to arrive at the instantly claimed composition. The ordinarily skilled artisan would have been motivated to do so based on the many benefits of using the solvents/co-solvent esteramides taught by Jentzer: specifically solubilization of large amounts of active agents, absence of crystallization, good biological activity due to solvation, and a favorable safety profile. The ordinarily skilled artisan would have a reasonable expectation of success in making this substitution because Jentzer teaches the success of incorporation of these solvents into 2,4-D-containing herbicidal compositions for subsequent dilution and application and for forming stable concentrates of the claimed active agents, which is the same intended result for the 2,4-D-containing herbicidal concentrate compositions taught by Olds.
It would have been obvious to one of ordinary skill in the art at the time of the instant filling to have optimized the amount of applicant’s a), b), and c) and the additional d) to the claimed amounts and to formulate water soluble concentrate compositions with these amounts because Olds teaches using their active agents in overlapping amounts/concentrations to thow instantly claimed and teaches using their surfactants/co-solvents in their water soluble concentrates of the same herbicides, e.g. 2,4-D salts, in amounts which overlap those instantly claimed and it is known, “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. ‘[W]here 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.’" In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), and “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). In the instant case, applicants have not demonstrated any criticality with their claimed ranges of co-solvents and/or surfactants with respect to the compositions containing from 200 g/L to 800 g/L of the claimed active agents.
It also would have been obvious to select to use applicant’s claimed components a), b), c) and d) together to form the claimed water soluble herbicidal concentrates because each component was known in the art to be useful for forming highly concentrated 2,4-D salt compositions for dilution by users for application in the field at the same rates that are instantly claimed and it is known, “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In reKerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted).
It also would be obvious to optimize the amounts of the surfactants b) and c) to read on each of the newly claimed amounts of b) and c) in order to form effective water soluble concentrates of the claimed actives because each of the claimed components was known in the art to be useful for forming concentrates of the claimed actives and because it is known "[W]here 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), and “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding the claimed amounts of from 0.1 to 5 wt% of the co-solvent of formula (I), and the claimed amounts of b) and c) which are instantly claimed in claims 17-19 it would have been obvious to one of ordinary skill in the art at the time of the instant filling to have optimized the amount of applicant’s b) to the newly claimed range of 0.1 to 5 wt% and to have component c) present in amounts which read on the total amounts instantly claimed because Olds teaches using their surfactants in their water soluble concentrates of the same herbicides, e.g. 2,4-D salts, in amounts which overlap the instantly claimed amounts/total amounts and because Jentzer clearly teaches that using the claimed esteramides as surfactants/co-solvents for formulating active agents including the claimed 2,4-D as concentrates, and wherein these esteramides specifically allow for the solubilization of large amounts of active agents; and lead to an absence of crystallization of the active agents even in demanding conditions; provide good biological activity of the active agents which may be due to good solvation; and provide a safety, toxicology and ecotoxicology profile that is perceived as favorable. Jentzer teaches they may use at least 10 wt% of the esteramide solvent in their compositions ([0262]). However, it would be obvious to combine known surfactants which are effective for forming low temperature stable water soluble/water diluted concentrates of the claimed actives together in order to form additional low temperature stable water soluble concentrates of the claimed active agents because it is known, that it is prima facie obvious to combine two components each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition comprising these components which is to be used for the very same purpose, e.g. forming water soluble concentrates of the same active agents. Thus, it would merely be optimization of amounts of known effective solubilizers for the claimed active agents in order to form the claimed water soluble concentrates because “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. ‘[W]here 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.’” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments/Remarks
Applicant’s amendments to the claims have overcome the previous claim objections and 112 rejections which are hereby withdrawn applicant’s amendments and new claims have prompted the new/revised grounds of rejection presented herein. Applicant’s arguments insofar as they pertain to the new grounds of rejection have been fully considered but were not persuasive at this time and are addressed herein.
Applicants first argue that they disagree that the instantly claimed concentrate composition is obvious because they have found with their amended claim scope that the addition of the co-solvent prevents crystallization at low temperatures. Firstly, the examiner respectfully points out that applicants argued results are not commensurate in scope with applicants claims as they are currently written. Specifically, for instance nothing in the instant claims actually require the composition to be stable at low temperatures and secondly applicant’s claims are not commensurate in scope with the results they are arguing. Applicants then argue that the claimed amounts of cosolvent are lower than the amounts used by Jentzer which teaches using from 10-92% of the esteramide as solvent which is higher than the instantly required 0.1-5% of esteramide cosolvent of formula (I) and that one of ordinary skill in the art would not have been motivated to use this lower amount of the claimed esteramide when looking to Jentzer. The examiner acknowledges that the amounts of esteramide preferred for use in Jentzer are higher than the newly claimed amounts as per [0262], but Jentzer does not specifically require these higher amounts or say that lower amounts would not work. Further, it is known to optimize the amounts of known solubilizers for agricultural actives, e.g. the phosphate ester of Olds and the esteramide of Jentzer both of which read on the instantly claimed formulae and both of which are known on their own for improving the low temperature solubility of 2,4-D salts and it is known in the art, "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). The examiner notes that it does appear that the instantly claimed amounts of each of b) and c) are critical for forming low temperature stable water-soluble concentrates of the claimed phenoxy salts. However, the examiner also notes that there is no low temperature solubility required by the instant claims as they are currently written. Thus, it appears that applicants are arguing features which are not actually required by the instant claims. Applicants then point to the declaration filed with their response which the examiner will address below. The data corroborates that applicant’s arguments that it is their specific blend of adjuvant(s) and co-solvents in specific amounts are required to achieve the argued low temperature stability. However as noted above, applicant’s arguments and results are not commensurate in scope with the instant claims as they are currently written and it is for this reason the revised/updated and new 103 rejections are presented in this office action with respect to the claimed compositions containing greater than 800 g/L of agricultural active agents.
Applicants also argue that the addition of only one of the adjuvants, e.g. CS8, CS2, etc. leads to a composition that crystallizes see also the other comparative examples which contain various amounts of the co-solvent (b) and the adjuvants (c) and/or (d) as claimed. Again the examiner recognizes the results presented in the instant specification but also as above respectfully points applicants to the fact that the instantly claimed composition does not actually require any stability/specific stability nor does it require the components to actually be present in the specific amounts which yield a low temperature stable concentrate composition. Thus, the instant claims are not commensurate in scope with the results that applicants are arguing.
The examiner respectfully notes that if applicants were to consider amending their claims to require their composition to have stability at 0 °C for 7 days as demonstrated by applicant’s data the examiner believes this would distinguish the instant claims from the prior art, as applicant’s data demonstrates that not just any combination of co-solvent and adjuvant c) provide this effect, e.g. that these effects are only achieved with the specific amounts that are instantly argued and appear to be claimed in claim 8.
Applicants then further argue that their compositions achieve a good balance between wettability and stability of the inventive formulations. The examiner agrees that applicants data does show good wettability and stability of the tested formulations. However, applicants claims are not commensurate in scope with the tested compositions which achieve these effects as is discussed above and is incorporated herein.
Regarding applicant’s new claims which are directed to low/lower doses of agriculture actives, these claims are rendered obvious for the reasons discussed above as these claims were not previously presented. Further, the data in the instant specification does not appear to disclose any criticality with respect to the amounts of components (b) and (c) in these compositions.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Declaration Under 1.132
Sandip Thakur provided a declaration under 1.132, filed 03/24/26. The Declaration meets the formal requirements. In the most relevant part, the Declaration presents comparison data for comparison to the data in the instant specification and provides comparison compositions which do not contain the claimed co-solvent but which do claim components c) and d) or just c) with 60% dimethyl amine salt of 2,4-D does not lead to stable water-soluble concentrates whereas the compositions in the instant specification which contain the co-solvent in the claimed amounts with component c) with or without component d) do lead to stable water-soluble concentrates.
A Declaration is due full consideration and weight for all that it discloses. Declarations are reviewed for the following considerations: 1) whether the Declaration presents a nexus such as a side-by-side or single-variable comparison (In re Huang, 40 USPQ2d 1685, 1689 (Fed. Cir.
1996)), 2) whether the Declaration presents a comparison to the closest art, 3) whether the
Declaration is commensurate in scope with the scope of the claims (In re Kulling, 14 USPQ2d
1056, 1058 (Fed. Cir. 1990)), 4) whether the Declaration shows a difference in kind rather than
merely a difference in degree (In re Waymouth, 182 USPQ 290, 293 (C.C.P.A. 1974)), and 5)
whether the prima facie case is sufficiently strong that allegedly superior results are insufficient
to overcome the case for obviousness (Pfizer Inc. v. Apotex, Inc., 82 USPQ2d 1321, 1339 (Fed.
Cir. 2007)). The relevant criterion here is No. 3, whether the Declaration is commensurate in scope with the scope of the claims (In re Kulling, 14 USPQ2d 1056, 1058 (Fed. Cir. 1990)).
In the most relevant part of the included declaration Sandip Thakur does not appear to explain what concentration/amount of 2,4-D dimethyl amine which is used in the comparison compositions beyond 60 wt%, thus it is unclear to the examiner if this concentration falls within the 200 g/L-800 g/L of the new claims or if this falls within the scope of greater than 800 g/L as was previously claimed and which would be directly comparable to most of the data in the specification, based on the weight percentages of active agent in the examples in the specification the examiner is interpreting 60 wt% to read on 860 g/L of 2,4-D acid dimethyl amine salt. Additionally, while applicant’s argue that the co-solvent in the claimed amounts is crucial for forming a stable water soluble concentrate of the claimed active agents with the claimed demonstrates that the claimed adjuvant c) the data is not commensurate in scope with the instant claims. Specifically, firstly the instant claims do not require a stable water-soluble concentrate composition, if a water-soluble concentrate composition is obtain for even the briefest period of time it reads on the instantly claimed composition as it is currently written. Additionally, applicant’s data in the specification clearly shows that the amount of component c) is also critical/crucial for achieving the argued unexpectedly stable water-soluble concentrate, specifically applicant’s demonstrate that amounts of b) and c) together which are higher than 7.5 wt% of the composition do not lead to stable water soluble concentrates. The prior art does not recognize this feature. However, these features are not required by all of applicant’s claimed compositions and further as discussed above stable water-soluble concentrates are not required by applicant’s claims. Thus, the argued data is not commensurate in scope with applicant’s claims at this time and as such the rejections are being maintained for the above reasons.
Thus for the above reasons, the examiner maintains that it would have been obvious to one of ordinary skill in the art at the time of the instant filing to have developed the claimed reaction conditions when looking to the prior art references as combined at this time.
Conclusion
No claims are allowed at this time.
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 Erin E Hirt whose telephone number is (571)270-1077. The examiner can normally be reached 10:30-7:30 ET M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue X Liu can be reached at 571-272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERIN E HIRT/Primary Examiner, Art Unit 1616
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