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
Amendment filed on 11/04/2025 is acknowledged.
Claims 3, 7, 11-12, 16, and 19 are cancelled. Claim 23 is new.
Claims 1, 2, 4-6, 8-10, 15, 18, 20, and 22 are amended.
Claims 1-2, 4-6, 8-10, 13-15, 17-18, and 20-23 are pending and being examined on merits herein.
Priority
This instant application 18251509, filed on 05/02/2023, is a 371 of PCT/EP2021080843, filed on 11/05/2021, which claims foreign priority to European Patent Office (EPO) 20206335.0, filed on 11/08/2020.
Information Disclosure Statement
The information disclosure statement (IDS), filed on 08/26/2025, is in compliance with the
provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the
Examiner.
New and Maintained Claim Objections/Rejections
The following objections/rejections are necessitated by applicant’s amendment filed on 11/04/2025.
Claim Objections
Claims 1, 4-5 and 21 are objected to because of the following informalities:
Claim 1 recites “poly(ethylene) oxides”, while Claim 4 recites “poly(ethylene) oxides” and “polyethylene oxides”. The compound name should keep consistency throughout the claim set.
Claim 1 recites “propyleneglycol”, while Claim 5 recites “propylene glycol”. The compound name should keep consistency throughout the claim set.
Claim 1 recites “comprising the components a) to d), f), and g) in the following amounts”, wherein f) amount is not present in the list and should be removed.
Claim 1 recites “EO” without defining it as ethylene oxide units, which is defined first time as seen in claim 6, while claim 1 shall be the first to define the term.
Claim 21 recites “applying an agrochemical formulation according to claim 1”, wherein the indefinite article “an” should be revised to definite article “the”, because the formulation is already defined in claim 1.
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 2, 15, 18, 20-21 and 23 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 2 recites “component f) comprises at least two formulants …, and wherein the formulants are present in at least one of f1)…”. It is unclear whether the concentration ranges shown from f1)-f5) are supposed to be optional, e.g., any one of these concentration ranges, for the “at least two formulants” (f1)-(f5), or it is meant to be component (f1) corresponding to concentration f1), component (f2) corresponding to concentration f2). In other words, it is also unclear whether the (f1) to (f5) components correspond to f1) to f5) from concentration ranges.
Claim 15 recites “b) from 0.1 to 30 g/l, and in case of b) being a vegetable oil or ester from 5 to 30 g/l, and in case of b) being a drift polymer from 0.1 to 8 g/l”. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c).
In the present instance, claim 15 recites the broad recitation “from 0.1 to 30 g/l”, and the claim also recites two different concentration ranges using “in case of” term, which is the narrower statement of the range/limitation. The claim is considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Further, it is unclear what ingredient types are left other than vegetable oil or ester and drift polymer. Moreover, the language fails to indicate whether “a vegetable oil or ester” and “a drift polymer” each refers to the same defined species in claim 1 without using definite article “the” for these components.
Moreover, claim 2, which claim 15 depends upon, indicates component (f) comprises at least two formulants, and concentrations present in at least one of the listed, while this claim does not mention about how many formulants are supposed to be.
The claim’s metes and bounds are unclear.
Claims 18 and 21 each recite “optionally” in claim limitations. Because all these optional choices involve different concentration or weight ranges, it is unclear which defined range(s) the limitation(s) are/is based upon, and there is no indication whether the ranges outside these optional ranges work or what ranges applicants are actually trying to claim, thus these claim scopes are indefinite.
Claims 18 and 20 each recites “the additives b) to” and “additive”. There is insufficient antecedent basis for this limitation in the claim because claim 1, which claim 18 or claim 20 is depending upon, does not mention “additives” or “additive”.
Claim 18 recites “additive b) from 0.005 to …, and optionally from … where b) is a drift reducing polymer; additive b) from 0.01 to …, and optionally from … where b) is an oil”. It is unclear what concentration ranges it should be due to the term “optionally” resulting in indefiniteness as discussed above, in addition, it is unclear whether b) in the composition is a drift reducing polymer, or is an oil, or both, and it is unclear whether “a drift reducing polymer” and “an oil” refer to the same specific species of claim 1 or not. If they refer to the same species of claim 1, the language should be modified to “where b) is the drift reducing polymer; …where b) is the vegetable oil and vegetable oil esters and diesters defined by claim 1”. If they refer to different ingredients, then the language requires “an additional …”. The current claim description fails to express a definite meaning.
Claim 20 recites “where additive b) is a drift reducing polymer” and “where additive b) is an oil”. It is unclear whether additive b) is a drift reducing polymer, or is an oil, or both, and it is unclear whether “a drift reducing polymer” and “an oil” refer to the polymer species or oil defined in claim 1 or not. If they refer to the same species of claim 1, the language should be modified to “where b) is the drift reducing polymer” and “the vegetable oil and vegetable oil esters and diesters oil defined by claim 1”. If they refer to different ingredients, then the language requires “an additional …”. The current claim description fails to express a definite meaning.
Claim 20 recites “includes a dose of the additives b) to d) per ha of”, while only c) and d) show g/ha doses in addition to showing values in the spray liquid, b) showing g/l in the spray liquid. It is unclear whether the g/l values in the spray liquid are meant to be the per ha values for component b), or the spray liquid values in c) and d) are not supposed to be in the limitation. The metes and bounds of the claim is unclear.
Claim 23 recites “wherein b) is a drift reducing polymer”, it is unclear whether this is a drift reducing polymer selected from the defined species in instant claim 1, or it is just a general drift reducing polymer. If it is meant to be the former, then the language needs to include meaning of “b) is the drift reducing polymer” selected from the species as defined in claim 1. If it is meant to be just a general drift reducing polymer, then the limitation scope is not further narrowing of claim 1 and would be rejected under 35 U.S.C. 112(d). For the purpose of compact prosecution, as presented below, the claim is interpreted as the one or more drift reducing polymer as previously defined. The current claim scope is unclear.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 6 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 6 recites “The agrochemical formulation according to claim 1, wherein c) is selected from the group consisting of polyalkyleneoxide modified heptamethyltrisiloxanes, dioctylsulfosuccinate, ethoxylated diacetylene-diols with 1 to 6 ethylene oxide (EO) units”. These compound species are exactly the same as those in claim 1 (upon which claim 6 is depending), although the phrase after these specified compounds “and combinations thereof” in claim 1 is being eliminated in claim 6, that does not result in a narrower scope of claim 6 according to claim 1. Because claim 1 defines “c) one or more spreading agents” and therefore, c) would be one or more agents “selected from …” the group in claim 6, and that results in “combinations thereof”, as the same scope defined by claim 1. Therefore, claim 6 fails to further limit the subject matter of claim 1.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Interpretation
Claims 1, 2, 6, 14, 15, 18, 20, 21 and 23 are interpreted below.
Claim 1 is interpreted as following:
An agrochemical formulation comprising:
a) one or more active ingredients selected from the group consisting of fungicides,
herbicides, insecticides, and combinations thereof, present at an amount from 5 to 500 g/1 of the formulation,
b) one or more drift reducing ingredients selected from the group consisting of polyethylene oxides with an average molecular weight from 0.5 to 12 million g/mol, hydroxypropyl guar, vegetable
oils, and vegetable oil esters and diesters including esters with glycerine and propylene glycol, and combinations thereof, present at an amount from 0.01 to 50 g/l,
c) one or more spreading agents, selected from the group consisting of polyalkyleneoxide modified heptamethyltrisiloxanes, dioctylsulfosuccinate, ethoxylated diacetylene-diols with 1 to 6 ethylene oxide (EO) units, and combinations thereof, present at an amount from 5 to 150 g/1,
d) one or more uptake enhancing agents, selected from the group consisting of ethoxylated alcohols, propoxyethoxylated alcohols, ethoxylated carboxylic acids, propoxy-ethoxylated carboxylic
acids, ethoxylated mono-, di- or triesters of glycerine comprising fatty acids with 8-18 carbon atoms and an average of 5-40 EO units, and combinations thereof, present at an amount from 10 to 180 g/1,
f) optional other formulants,
and
g) one or more carriers to volume.
Claim 2 is interpreted as the agrochemical formulation according to claim 1 comprises component f) comprising at least two formulants, selected from surfactants, rheological modifiers, antifoam substances, antifreeze agents, and further formulants, wherein the formulants in the formulation present at least one of the following amount ranges: 1) from 8-120 g/l, 2) from 1 to 20 g/l, 3) from 0.5 to 20 g/l, 4) from 5 to 150 g/l, or 5) from 0.1 to 120 g/l.
Claim 6 is interpreted as the agrochemical formulation according to claim 1, wherein c) is one spreading agent selected from the group consisting of polyalkyleneoxide modified heptamethyltrisiloxanes, dioctylsulfosuccinate, ethoxylated diacetylene-diols with 1 to 6 ethylene oxide (EO) units.
Claim 14 is interpreted as the agrochemical formulation component f) comprises one rheological modifier, one antifoam substance, at least one surfactant, and at least one antifreeze agent. Since surfactant can only have non-ionic and ionic two forms, any surfactant would read to the limitation.
Claim 15 is interpreted as the agrochemical formulation according to claim 2, comprising components present at concentrations as following:
a) the one or more active ingredients, from 10 to 320 g/1,
b) the one or more drift reducing ingredients, from 0.1 to 30 g/1,
c) the one or more spreading agents, from 10 to 80 g/1,
d) the one or more uptake enhancing agents, from 20 to 150 g/1,
and
f) the at least two formulants present at least one of the following ranges:
1) from 8 to 120 g/1,
2) from 1 to 20 g/1,
3) from 0.5 to 20 g/1,
4) from 5 to 150 g/1,
5) from 0.1 to 120 g/1,
and
h) carrier to volume.
Claim 18 is interpreted as in a spray liquid prepared from the formulation according to claim 1 having the concentration of components:
the one or more drift reducing polymers as defined in claim 1, from 0.005 to 1 g/l of the spray, and/or drift reducing oil species as defined in claim 1, from 0.01 to 5 g/l,
the one or more spreading agents, from 0.25 to 5 g/l,
one or more uptake enhancing agents, from 1 to 20 g/l.
Claim 20 is interpreted as:
The concentration in the formulation according to claim 1:
the one or more drift reducing polymers as defined in claim 1, from 0.4 to 6 g/1, and/or drift reducing oil species as defined in claim 1, from 0. 1 to 50 g/1,
the one or more spreading agents, from 10 to 40 g/l,
the one or more uptake enhancing agents, from 40 to 160 g/l,
and
the concentration in a spray liquid prepared from the formulation according to claim 1:
the one or more drift reducing polymers as defined in claim 1, from 0.02 to 0.6 g/1, and/or drift reducing oil species as defined in claim 1, from 0.02 to 0.6 g/l,
the one or more spreading agents, from 0.5 to 4 g/l,
the one or more uptake enhancing agents, from 2 to 8 g/l.
The “per ha” doses of c) and d) are not considered because b) does not provide such corresponding per ha dose, plus, per ha dose is irrelevant to the dilution factors of a spray liquid prepared from the formulation.
Claim 21 is interpreted as a method applying the agrochemical formulation according to claim 1 onto crops, comprising applying the formulation at a spray volume of between 1 and 30 l/ha.
Claim 23 is interpreted as component b), the one or more drift reducing polymers as defined in claim 1, is present in a concentration from 0.05 to 3 g/l in the agrochemical formulation.
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 1-2, 4-6, 8-10, 13-15, 17-18, and 20-23 are rejected under 35 U.S.C. 103 as being unpatentable over Bayer (EP3248465, 11/29/2017, in record of 07/28/2025), in view of Bauer et al. (US2020/0060266, 02/27/2020).
Bayer throughout the reference directs to agrochemical compositions based on emulsion polymers; their use for foliar application and their application in aqueous crop protection flowable formulations for controlling agricultural pests, weeds, or diseases and reducing the wash-off of active ingredients by rainfall (e.g., Abstract), to improve the rainfastness of agrochemical active ingredients as well as the resistance to wash-off by rain of an agrochemical active ingredient [0023], teaching a composition of drift-reducing by a current of water.
Regarding instant claims 1a), claim 8, and claim 15a), Bayer teaches the suitable active agrochemical ingredients can be fungicides, herbicides, insecticides (e.g., [0027]-[0028]). Bayer teaches in Example 1 containing active ingredient fluopyram at 500 g/l [0143]. In Example 2 composition, Bayer teaches active ingredients spiroxamine at 200 g/l and fluopyram at 75 g/l [0146] known as fungicide [0031], amounts within the range of from 5 to 500 g/l in instant claim 1a), from 10 to 320 g/l in instant claim 8 and claim 15a).
Regarding instant claims 1b), 5, 15b), 18b), 20b) and 23, Bayer teaches the agrochemical compositions comprising b) an emulsion polymer system comprising stabilizer polymer and core stabilizer copolymer component (e.g., [0018]), and suitable penetration promoters, wetting agents, spreading agents, and/or retention agents, including block-copolymer of polyethylene oxide and polypropylene oxide (e.g., [0124], vegetable oils such as sunflower oil, rapeseed oil, corn oil, soybean oil, olive oil, etc. (e.g, [0126]) (corresponding to drift reducing ingredients in instant claim 1b). Bayer exemplifies formulation containing active ingredient fluopyram and spiroxamine, oil at 160 g/l, and additive component (b) at 30 g/l [0143], while component (b) refers to polymers as drift reducing ingredients selected from Table 1 [0113] being preferably water soluble and water swellable [0103] with wash-off and stability results shown in Tables 3 and 4 respectively (drift reducing ingredient amount falling within from 0.01 to 50 g/l in instant claim 1b), or from 0.1 to 30 g/l in instant claim 15 b). Bayer further teaches the example formulations are made into 1% dilution in water for determination of aggregation of active ingredient particles and suspension [0142], thus, the resulting formulation containing drift reducing agent present at concentrations as 0.30 g/l for polymer (within the range from 0.05 to 3 g/l in instant claim 23, or from 0.02 to 0.6 g/l in instant claim 20 b) spray liquid), and 1.60 g/l for oil (amount falling within from 1 to 50 g/l in instant claim 5, or from 0.01 to 5 g/l in instant claim 18 b), or from 0.1 to 50 g/l in instant claim 20 b) formulation).
MPEP 2145 II. states that “prima facie obviousness is not rebutted by merely recognizing additional advantages or latent properties present but not recognized in the prior art”, see In re Baxter Travenol Labs., 952 F.2d 388, 21 USPQ2d 1281 (Fed. Cir. 1991). Bayer does not explicitly teach that the vegetable oils or polyethylene oxide polymers are drift reducing ingredients, the ingredients are evidenced by instant claims that they possess such property.
Regarding instant claims 1c), 6, 9, 15c), 18c) and 20c), Bayer teaches spreading agents can be included in the composition (e.g., [0019], [0118]), and Bayer indicates that ethoxylated branched alcohols with 2-20 EO units and ethoxylated diacetylene-diols are suitable for the formulation (e.g., [0124-0125] (corresponding to spreading agent species in instant claim 1c) and claim 6 with overlapping carbon numbers). Bayer teaches in Example 1 the spreading agent non-ionic dispersants at 60 g/l and anionic dispersants at 15 g/l [0143], and in Example 2 non-ionic dispersants at 37 g/l, with at least one amount falling within from 5 to 150 g/l in instant claim 1c), from 10 to 80 g/l in instant claims 9 and claim 15c), from 10 to 40 g/l in instant claim 20c) formulation. Bayer teaches to make a 1% diluted formulation of the example formulations [0142], resulting in the spreading agents shown above range from 0.15 to 0.6 g/l, overlapping with the range from 0.01 to 5 g/l in instant claim 18c), or from 0.5 to 4 g/l in instant claim 20 c) spray liquid.
Regarding instant claims 1d), 10, 15d), 18d) and 20d), Bayer teaches uptake enhancing agents, e.g., suitable penetration promoters, wetting agents, spreading agents, and/or retention agents, including ethoxylated branched alcohols, ethoxylated mono- or diesters of glycerine comprising fatty acids with 8-18 carbon atoms and an average of 10-40 EO units (e.g., [0124]-[0125]) (corresponding to uptake enhancing agents with same carbon numbers and overlapping EO units as recited in instant claim 1d)), vegetable oils as penetration promoters (e.g., [0126]) thus enhancing uptake. Bayer exemplifies oils in Example 2 in the amounts of 160 g/l [0146] (falling within the range from 10 to 180 g/l in instant claim 1d), same as the top end range 160 g/l in instant claim 20d) formulation, close to (around 94%) the top end 150 g/l in instant claims 10 and 15d)); Bayer also teaches the 1% diluted water formulation of the example formulations, resulting in amount 1.6 g/l [0142] (falling within from 1 to 20 g/l in instant claim 18 d), and close to low end of 2 g/l in instant claim 20d) spray liquid).
Regarding instant claims 1f), 2, 14, 15f), Bayer teaches the composition can include rheological modifiers (e.g., [0018]), and other formulants including antifoams, antifreeze, buffers, stabilizers, etc. (e.g., [0118]) (corresponding to other formulants in instant claims 1f) and 2). Bayer exemplifies in Example 1 rheological modifier at 2.4 g/l, antifreeze at 80 g/l, antifoam at 2 g/l , non-ionic dispersants 60 g/l, and anionic dispersants 15 g/l [0143], while Bayer indicates non-ionic dispersants can be suitable non-ionic surfactants (e.g., [0114]), and anionic dispersants can be anionic surfactants (e.g., [0115]). Thus, the formulants in Example 1 correspond to species in instant claim 14), with all formulant amounts falling within at least one ranges recited in instant claims 2 and 15.
Regarding instant claim 13, Bayer specifies that the active ingredient can be preferred insecticides, fungicides, or herbicides including bixafen, prothiconazole, fluopyram, fluopicolide, spirotetramat, tetraniliprole, ethiprole, imidacloprid, flupyradifuron, triafamone, tembotrine, and many others [0028-0032].
Regarding instant claim 17, Bayer indicates that it is most desirable for practical purposes to provide highly storage-stable aqueous pesticide concentrates having no organic solvents or only solvent amounts to dissolve a crystalline pesticide in the form of an emulsion and which can be diluted easily with pure water, thereby forming stable dilute emulsions for application purposes. An aqueous suspension concentrate, suspo-emulsion, aqueous suspension, capsule suspension and concentrated emulsion which is stable under storage for at least two years is desired [0013]. Therefore, Bayer teaches the formulation as an in-can ready to use formulation with no need adding additional adjuvants or other ingredients in a spray tank.
Regarding instant claim 21, Bayer teaches the formulations by dilution with water can be converted into homogeneous spray liquids. These spray liquids are applied by customary methods, i.e., for example, by spraying, pouring or injecting [0128] to treat all plants and plant parts [0132]. Bayer also indicates that the compositions should have an excellent rainfastness and the spray dose in field and interval of spray applications on crops can be adjusted based upon environmental conditions [0014]. Formulation can be diluted and adjusted to whatever concentration needed for field spray.
Regarding instant claim 22, Bayer teaches the agrochemical formulations comprising fungicide, insecticide, or herbicide, and Bayer teaches the product comprising an agrochemical formulation with one or more agrochemical compounds for controlling harmful organisms as presented above. The formulation taught by Bayer would be capable of being applied by a UAV, UGV, PWM sprayers, because capable of being applied by a special spray vehicle is inherent property of the composition, which has been taught by Bayer.
Bayer does not teach an average molecular weight from 0.5 to 12 million g/mol of polyethylene oxides or hydroxypropyl guar as recited in instant claims 1b) and 4.
Bauer teaches throughout the reference of drift-reducing components in compositions for plant treatments (e.g., Abstract).
Bauer teaches that the composition can include active ingredients selected from the group consisting of pesticides, phytohormones, preferably growth regulators, biological pest-control agents, fungicidal copper compounds, and/or repellents (e.g., [0019]). Bauer teaches suitable retention promoters include all substances that reduce dynamic surface tension, for example dioctyl sulfosuccinate, or increase viscoelasticity, for example hydroxypropyl guar polymers (e.g., [0074]), which read into the drift reducing polymers in instant claims 1b) and 4.
It is prima facie obvious for one with ordinary skills of art prior to filing date to combine Bauer and Bayer’s teaching to select and implement known components to arrive at current invention. Because Bauer specifies that hydroxypropyl guar is an effective retention and drift reducing agent, and Bayer teaches composition with substantial components to work together to reduce wash-off of active ingredients, it would have provided reasonable expectation of success to implement hydroxypropyl guar as a drift-reducing component in the composition. It is well settled that it is a matter of obviousness for one of ordinary skill in the art to select a particular component disclosed by the prior art as long as it is taught that the selection will result in the disclosed effect. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985).
Moreover, MPEP 2112.01.II states "[p]roducts of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id. For this instance, as long as the same compounds are taught by prior art, the properties of these compounds as claimed in instant invention are necessarily present in prior art compounds. For instance, vegetable oils are as instantly claimed as drift reducing ingredients, and therefore, when prior art formulation uses vegetable oils, they can present as drift reducing ingredients, in addition to the penetrating promoter property taught by prior art. Furthermore, MPEP 2145 II. states that “prima facie obviousness is not rebutted by merely recognizing additional advantages or latent properties present but not recognized in the prior art”, see In re Baxter Travenol Labs., 952 F.2d 388, 21 USPQ2d 1281 (Fed. Cir. 1991).
Regarding claims 18 and 20 further, diluting the formulation to prepare it as a spray liquid does not provide structural limitations to the actual formulation. Since Bayer teaches the formulation for agrochemical spray and also uses a diluted formulation to examine aggregation of the formulation as presented in detail above, an artisan with ordinary skills in the field can apply the formulation at whatever diluted concentration as needed for the formulation to be applied in field. “The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.” In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983), and "A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments." Merck & Co. v.Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), and "Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments." In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971).
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. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). For this instance, concentrations taught by prior art fall within the ranges of instant claims, and EO units overlap with prior art as discussed above. Furthermore, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
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 1-2, 4-6, 8-10, 13-15, 17-18, and 20-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 5-12 and 14-15 of copending Application No. 18/251,413 (hereafter, App’413) in view of Bayer (EP3248465, 11/29/2017, in record of 07/28/2025).
Although the claims at issue are not identical, they are not patentably distinct from each other.
App’413 claims direct to an agricultural adjuvant composition for tank-mixture with a crop protection product comprising a) one or more drift reducing ingredients selected from polyethylene oxides having an average molecular weight from 0.5 to 12 million g/mol, a hydroxypropyl guar, vegetable oils and vegetable oil esters and diesters, present from about 2 to about 25% by weight, b) one or more rain-fast additives, d) one or more uptake enhancing agents, selected from ethoxylated alcohols, propoxy-ethoxylated alcohols, ethoxylated carboxylic acids, propoxy-ethoxylated carboxylic acids, or ethoxylated mono,-di or triesters of glycerine comprising fatty acids with 8-18 carbon atoms and an average of 5-40 EO units, from about 30 to about 55% by weight, e) other formulants, f) optionally one or more carriers to 100% (claim 1, corresponding to instant claim 1b, 1c, 1d, 1f, and 1g). US’413 recites drift reducing ingredients amount from 4 to 20% or from 5 to 15% (Claim 5) selected from the group comprising vegetable oils and vegetable oil esters and diesters (claim 2), corresponding to instant claim 5; uptake enhancing agents selected from the group comprising ethoxylated alcohols, ethoxylated branched alcohols, and others with carbon atoms and EO units (claim 3, corresponding to spreading agents in instant claims 1 and 6); component e) comprises at least one antifoam substance and at least one antifreeze agent (claim 8, corresponding to other formulant in instant claims 1, 2, and 14-15), while claims 5-7 recite amounts of a), b), d) percentage amounts. US’413 provides a), b), d), e) component amounts in the formulation of claim 1 (claim 9, corresponding to instant claims 9-10). US’413 recites active ingredient is selected from a group including trifloxystrobin, bixafen, prothioconazole, inpyrfluxam, isoflucypram, and others (claim 10, corresponding to instant claims 1a) and 13). US’413 recites diluted amount of the formulation being applied (claims 11-12, corresponding to instant claims 17-18 and 20-21) on plant or crops with textured leaf surfaces (claim 14), capable of being applied by a UAV, UGV, PWM for controlling harmful organisms (claim 15, corresponding to instant claim 22).
US’413 does not recite the component amounts in g/l as recited in instant claims, rather in %.
As discussed in detail above and incorporated herein, Bayer teaches the component amounts with concentration in g/l.
It would have been prima facie obvious for one of ordinary skills in the art to incorporate Bayer’s teaching into US’413 to arrive at current invention. Because both formulations share same components with overlapping functions for the same intended use, one would have reasonable expectation of success to combine them. The claimed invention is a simple combination of reagents known to be obvious materials that all already taught in prior art and discussed above. The idea for combining them flows logically from them having been individually taught in the prior art. In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
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. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). Furthermore, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-2, 4-6, 8-10, 13-15, 17-18, and 20-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6, 8-10, 13-15, 17-18 and 20-24 of co-pending Application No. 18/251,816 (hereafter US’816) in view of Bayer (EP3248465, 11/29/2017, in record of 07/28/2025). Although the claims at issue are not identical, they are not patentably distinct from each other.
US’816 recites components of a), b), c), f), g) and similar amounts (claim 1) corresponding to instant claim 1, while swapping d) component of one or more uptake enhancing agents in instant claim 1 with e) component of rain-fast additives (claim 1). US’816 defines component f) (claim 2, corresponding to instant claim 2), component b) comprising polyethylene oxides (claim 3, corresponding to instant claim 3), very similar claims 4-6, 8-10, 13-15, 17-18 and 20-22 as instant claims 4-6, 8-10, 13-15, 17-18, 20-22, except for swapped component e) amount variations differ from those in instant claims of component d). US’816 indicates that component e) is an emulsion polymer or polymer dispersion agent (claim 7). US’816 provides examples of formulations in claims 23 and 24 (corresponding to instant claim 1).
US’816 does not recite component d) of one or more uptake enhancing agents as recited in instant claim 1.
As discussed in great detail above and incorporated herein, Bayer teaches the component d) of uptake enhancing agents including ethoxylated alcohols.
It would have been prima facie obvious for one of ordinary skills in the art to incorporate Bayer’s teaching into US’816 to arrive at current invention. Because both formulations share most components with overlapping functions for the same intended use, one would have reasonable expectation of success to combine them. The claimed invention is a simple combination of reagents known to be obvious materials that all already taught in prior art and discussed above. The idea for combining them flows logically from them having been individually taught in the prior art. In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
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. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). Furthermore, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-2, 4-6, 8-10, 13-15, 17-18, and 20-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1 and 4-22 of co-pending Application No. 18/251,409 (hereafter US’409) in view of Bayer (EP3248465, 11/29/2017, in record of 07/28/2025). Although the claims at issue are not identical, they are not patentably distinct from each other.
US’409 recites an agricultural adjuvant composition for tank mixture with a crop protection product, nearly identical to instant claims, comprising one or more drift reducing ingredients, one or more spreading agents, one or more uptake enhancing agents, other formulants, and carriers to volume (claim 1, corresponding to instant claim 1), and an active ingredient (claim 17). It recites drift reducing agents from polyethylene oxides (claim 4), spreading agents (claim 5), uptake enhancing agents (claim 6), other formulants (claim 12), component amounts in % of the formulation (claims 8-11 and 13-16), and composition amounts capable of being applied in field (claims 18-20) for application on a plant or crops (claim 21) and for controlling harmful organisms capable of being applied by a UAV, UGV, PWM (claim 22). US’409 indicates that rain-fast additive is an emulsion polymer or polymer dispersion (claim 7).
US’409 does not use concentrations in g/l, rather in percentage %.
Bayer teaches a composition with the claimed components with amounts in g/l as discussed above in great detail and incorporated herein.
It would have been prima facie obvious to combine Bayer with the composition of US’409 to arrive at current invention, because both share common ingredients and intended use, one would have reasonable expectation to combine the compositions for success. The claimed invention is a simple combination of reagents known to be obvious materials that all already taught in prior art and discussed above. The idea for combining them flows logically from them having been individually taught in the prior art. In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
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. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). Furthermore, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-2, 4-6, 8-10, 13-15, 17-18, and 20-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1-7, 9-11, 15-19, and 21-28 of co-pending Application No. 18/251,855 (hereafter, US’855), in view of Bayer (EP3248465, 11/29/2017, in record of 07/28/2025). Although the claims at issue are not identical, they are not patentably distinct from each other.
US’855 recites an agrochemical formulation comprising all components a), b), c), d), f) and g) (claim 1) as components in instant claim 1 with overlapping amounts. US’855 recites claims 2-7 and 9-11 corresponding to instant claims 2-6 and 8-10 with identical or overlapping amount ranges. Claim 15 in US’855 recites the same ingredients as instant claim 13. Claim 16 corresponds to instant claim 15 with overlapping amount ranges, claims 17 and 22 corresponding to instant claim 21, claim 18 corresponding to instant claim 17, claims 19 corresponding to instant claim 18 with overlapping amount ranges, claim 21 corresponding to instant claim 20 with overlapping amount ranges, claim 23 in US’866 corresponding to instant claim 22. US’855 recites applying the formulation onto crops (claim 24), and provides formulation examples with various active ingredient species in claims 25-28 (corresponding to instant claim 1). US’855 recites component f) comprises rheological modifier, antifoam substances, and antifreeze agent (claims 25-28), corresponding to instant claim 14.
US’855 does not explicitly recite the active ingredients are selected from the group consisting of fungicides, herbicides, insecticides, and combinations thereof as recited in instant claim 1a.
As discussed above in detail and incorporated herein, Bayer teaches the agricultural composition comprising fungicides, herbicides, pesticides.
It would have been prima facie obvious to combine Bayer with the composition of US’855 to arrive at current invention, because both share common ingredients and intended use, one would have reasonable expectation to combine the compositions for success. The claimed invention is a simple combination of reagents known to be obvious materials that all already taught in prior art and discussed above. The idea for combining them flows logically from them having been individually taught in the prior art. In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
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. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). Furthermore, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-2, 4-6, 8-10, 13-15, 17-18, and 20-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims at least 1-6, 8-9, 13-18 and 20-22 of co-pending Application No. 18/251,506 (hereafter US’506), in view of Bayer (EP3248465, 11/29/2017, in record of 07/28/2025). Although the claims at issue are not identical, they are not patentably distinct from each other.
US’506 recites a composition comprising component of a), b), d), f), and g) (claim 1) and amounts as recited in instant claim 1, except replacing component c) of one or more spreading agents in instant claim 1 with one or more rain-fast additives e) (claim 1). Claims 2-6, 8-9, 13-18, 20-22 in US’506 recite components and overlapping amounts corresponding to those in instant claims 2, 4-6, 8-10, 13-15, 17-18, 20-22, only differing of component c) in instant claim is rain-fast additives and its amount.
US’506 does not recite component c) spreading agents as recited in instant claim 1, and component c) species as recited in instant claim 6, and component c) amount in instant claims 9, 15, 18-20.
Bayer teaches spreading agent and its amounts as disclosed above in detail and being incorporated herein.
It would have been prima facie obvious to combine Bayer and swap the rain-fast additive in US’506 composition with spreading agents to arrive at current invention, because both share common ingredients and intended use, one would have reasonable expectation to combine the compositions for success. The claimed invention is a simple combination of reagents known to be obvious materials that all already taught in prior art and discussed above. The idea for combining them flows logically from them having been individually taught in the prior art. In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
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. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). Furthermore, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-2, 4-6, 8-10, 13-15, 17-18, and 20-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1-3, 6-8, and 11-17 of co-pending Application No. 18/863,772 (hereafter US’772), in view of Bayer (EP3248465, 11/29/2017, in record of 07/28/2025). Although the claims at issue are not identical, they are not patentably distinct from each other.
US’772 recites a composition comprising component of a)-f) components (claim 1) and amounts (claims 1-2) corresponding to instant claims 1-2, 8-10, 15 and 23, except instant component species are not fully defined in US’772 and one or more spreading or uptake promoting additives d) in US’772 is split into component c) as spreading agents and d) uptake enhancing agents in instant claim 1. US’772 claims 3 and 6-8, and 11 recite the component species corresponding to instant claims 1b) and 4-5 with overlapping molecular weight, component d) species with overlapping EO units in instant claims 1d) and 6, and component a) species in instant claims 1a) and 13. US’772 claims 12-13 recites formulants overlapping with those in instant claim 14. Claims 14-17 in US’772 recite formulation diluted amounts and application corresponding to those in instant claims 21-22, differing of component c) in instant claim is rain-fast additives and its amount.
US’772 does not recite the formulation is in can formulation as recited in instant claim 17, or diluted formulation in a spray liquid concentrations as in instant claims 18 and 20.
Bayer teaches the formulation can be in can formulation and the diluted formulation concentrations as discussed above in detail and incorporated herein.
It would have been prima facie obvious to combine Bayer with US’772 composition to arrive at current invention, because both share common ingredients and intended use, one would have reasonable expectation to combine the compositions for success. The claimed invention is a simple combination of reagents known to be obvious materials that all already taught in prior art and discussed above. The idea for combining them flows logically from them having been individually taught in the prior art. In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
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. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). Furthermore, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-2, 4-6, 8-10, 13-15, 17-18, and 20-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1-3, 6-9, 12-13 and 15 of co-pending Application No. 18/863,767 (hereafter US’767), in view of Bayer (EP3248465, 11/29/2017, in record of 07/28/2025). Although the claims at issue are not identical, they are not patentably distinct from each other.
US’767 recites an agrochemical composition comprising component of a)-e) components (claim 1) and amounts (claims 1-2) corresponding to components b), c) or d), f) and g) in instant claims 1-2, 8-10, 15, 18 and 23 with overlapping amount ranges, except component a) is not recited and instant component species are not fully defined in US’767 and one or more spreading or uptake promoting additives d) in US’767 is split into component c) as spreading agents and d) uptake enhancing agents in instant claim 1. US’767 claims 3 and 6-9 recite the component species corresponding to instant claims 1, 4-6 and 14 with overlapping molecular weight, or EO units. US’767 claims 12-13 recites spray volume overlapping with those in instant claim 21. Claim 15 recites application vehicles corresponding to instant claim 22.
US’767 does not recite the active ingredient and species in the formulation as recited in instant claim 1 and 13, it does not recite the formulation is in-can formulation as recited in instant claim 17.
Bayer teaches the formulation comprising active ingredients and its species, and the formulation can be in can formulation as discussed above in detail and incorporated herein.
It would have been prima facie obvious to combine Bayer with US’767 composition to arrive at current invention, because both share common ingredients and intended use, one would have reasonable expectation to combine the compositions for success. The claimed invention is a simple combination of reagents known to be obvious materials that all already taught in prior art and discussed above. The idea for combining them flows logically from them having been individually taught in the prior art. In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
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. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). Furthermore, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed on 11/04/2025 have been fully considered but they are moot because of the new ground of rejections.
Applicant argued that Bayer does not specify drift reducing agents, or spreading agents or uptake enhancing agents as recited in instant claim 1. However, as presented in the office action and cited below the most relevant reasoning paragraphs below for reference, Bayer teaches these agents in the formulation:
MPEP 2145 II. states that “prima facie obviousness is not rebutted by merely recognizing additional advantages or latent properties present but not recognized in the prior art”, see In re Baxter Travenol Labs., 952 F.2d 388, 21 USPQ2d 1281 (Fed. Cir. 1991). Bayer does not explicitly teach that the vegetable oils or polyethylene oxide polymers are drift reducing ingredients, the ingredients are evidenced by instant claims that they possess such property.
MPEP 2112.01.II states "[p]roducts of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id. For this instance, as long as the same compounds are taught by prior art, the properties of these compounds as claimed in instant invention are necessarily present in prior art compounds. For instance, vegetable oils are as instantly claimed as drift reducing ingredients, and therefore, when prior art formulation uses vegetable oils, they can present as drift reducing ingredients, in addition to the penetrating promoter property taught by prior art. Furthermore, MPEP 2145 II. states that “prima facie obviousness is not rebutted by merely recognizing additional advantages or latent properties present but not recognized in the prior art”, see In re Baxter Travenol Labs., 952 F.2d 388, 21 USPQ2d 1281 (Fed. Cir. 1991).
Please refer to the entire office action presented above as the complete response to the remarks/arguments.
Conclusion
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.
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/DX.Z./Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616