DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Claims
Claims 1-17, 19, 21, and 22 are pending and under current examination. Claims 18 and 20 are cancelled.
Withdrawn Claim Rejections
All rejections pertaining to claims 18 and 20 are moot because the claims were cancelled in the amendments filed 10/23/2025.
All rejections under 35 U.S.C. 112(b) pertaining to claims 2, 5, 6, and 17 under 35 U.S.C. 112(b) are withdrawn in view of the arguments filed 10/23/2025.
All rejections under 35 U.S.C. 112(b) pertaining to claims 7, 9, and 10 are withdrawn in view of the amendments filed 10/23/2025.
All rejections not reiterated have been withdrawn.
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 3 and 4 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.
Claims 3 and 4 contain the phrase “said agrochemical is the herbicide”. This renders the claim indefinite because it is unclear which agrochemical of the instant claim 1 the phrase is referring to.
Response to Arguments
Applicant's arguments filed 10/23/2025 have been fully considered but they are not persuasive.
On page 12, Applicant argues that claims 3 and 4 positively recite that option (II) is being claimed. This is not found persuasive. The independent claim 1 recites “an herbicide chosen from dicamba, 2,4-D, glufosinate, and combinations thereof”. The limitation “the herbicide” recited by claims 3 and 4 is indefinite because it is not clear which herbicide is embraced by the claim (i.e. dicamba, 2,4-D, glufosinate, or a combination). The indefiniteness rejection could be obviated by amending claims 3 and 4 to read “…wherein said agrochemical is an herbicide chosen from dicamba, 2,4-D, glufosinate, and combinations thereof…”.
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 1-17, 19, and 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Byrne (U.S. Patent Application Publication No. 2020/0094207, publication date: 3/26/2020, of record).
Applicant’s Invention
Applicant’s claim 1 is drawn to a liquid agrochemical composition comprising: an agrochemical comprising a fungicide and/or an herbicide chosen from dicamba, 2,4-D, glufosinate, and combinations thereof and present in an amount of from about 0.05 to about 60 weight percent based on a total weight of said composition; and a surfactant present in an amount of from about 0.05 to about 50 weight percent based on a total weight of said composition and consisting of; (i) at least one alkoxylated monoglyceride present in an amount of from about 30 to about 45 weight percent based on a total weight of said surfactant, (ii) at least one alkoxylated diglyceride present in an amount of from about 40 to about 50 weight percent based on a total weight of said surfactant, (iii) at least one alkoxylated triglyceride present in an amount of from about 8 to about 10 weight percent based on a total weight of said surfactant, and (iv) at least one alkoxylated glycerin present in an amount of from about 6 to about 8 weight percent based on a total weight of said surfactant. Applicant’s claim 17 is drawn to a liquid agrochemical composition consisting essentially of: an agrochemical comprising a fungicide and/or an herbicide chosen from dicamba, 2,4-D, glufosinate, and combinations thereof and present in an amount of from about 0.05 to about 60 weight percent based on a total weight of said composition; and a surfactant present in an amount of from about 0.05 to about 50 weight percent based on a total weight of said composition and consisting of;
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(i) at least one alkoxylated monoglyceride present in a molar amount of from about 30 to about 45 weight percent of said surfactant and has a structure
(ii) at least one alkoxylated diglyceride present in a molar amount of from about 40 to about 50 weight percent based on a total number of moles of (i)-(iv) in said surfactant and has a structure
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(iii) at least one alkoxylated triglyceride present in a molar amount of from about 8 to about 10 weight percent based on a total number of moles of (i)-(iv) in said surfactant and has a structure
(iv) at least one alkoxylated glycerin present in a molar amount of from about 6 to about 8 weight percent based on a total number of moles of (i)-(iv) in said surfactant and has a structure
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wherein each R is independently a C7-C23 saturated or unsaturated group; wherein each R1 is independently H, CH3, or CH2CH3; and wherein a total of (x+y+z) is from about 2 to about 40.
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claims 1, 3-17, and 19, Byrne teaches a vegetable oil-based alkoxylate composition included in an agrochemical formulation comprising a pesticidally effective amount of a pesticide or a mixture of pesticides and the vegetable oil-based alkoxylated composition [0100]. Byrne also teaches that the vegetable oil-based alkoxylate composition of the present disclosure increases the performance of the active ingredients in agrochemical formulations as compared to agrochemical formulations that do not contain the vegetable oil-based alkoxylate composition of the present disclosure [0100]. The vegetable oil-based alkoxylate composition comprises monoacyl alkoxylated glyceride, diacyl alkoxylated glyceride, triacyl alkoxylated glyceride, and an alkoxylated glycerin [0045]. The weight ratio of the total amount of mono-, di-, and triacyl alkoxylated glycerides to the amount of alkoxylated glycerin can be in a range of from about 0.5:1 to 30:1 [0051]. The weight percent for each mono-, di-, or triacyl glycerin or glycerin in the composition can vary as long as the weight ratio of the total amount of mono-, di-, and triacyl alkoxylated glycerides to alkoxylated glycerin is consistent with the weight ratio limitation [0055]. The herbicide of the composition may include 2,4-D, dicamba, glufosinate, and mixtures thereof [0037]. The agrochemical composition may contain about 0.1-99% by weight of the vegetable oil-based alkoxylated composition [0103]. The amount of pesticide included in the agrochemical formulation of the present disclosure will vary according to a number of parameters, such as the target substrate to be treated, the area to be treated, etc. In general, a rate of application from about five grams to about four kilograms per hectare (g/ha) of pesticide may be suitable [0106].
Regarding claims 2 and 7, Byrne teaches a vegetable oil-based alkoxylate composition included in an agrochemical formulation comprising a pesticidally effective amount of a pesticide or a mixture of pesticides and the vegetable oil-based alkoxylated composition [0100]. The vegetable oil-based alkoxylate composition comprises monoacyl alkoxylated glyceride having a formula (I), diacyl alkoxylated glyceride having a formula (II), triacyl alkoxylated glyceride having a formula (III), and an alkoxylated glycerin having a formula (IV):
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wherein R is a C8 to C24 saturated or unsaturated alkyl group; R1 is H, CH3, CH2CH3, or a combination thereof; and x, y, and z each range from 2 to 100 and the sum of x, y, and z for each of formulas I, II, III, and IV is from 6 to 300 [0045].
Regarding claims 3-6 and 11-16 Byrne teaches that the agrochemical formulation may be used in treating target substrates and refers to all forms of compositions including concentrates and spray formulations [0105]. The Examiner considers the phrase “all forms of compositions” embraced by Byrne to encompass the “in-can composition” limitation of the instant claims.
Regarding claims 5 and 6, Byrne teaches that the pesticide included in the agrochemical composition may comprise a fungicide [0034].
Regarding claim 21, Byrne teaches the relevant limitations as described above for claims 1, 3-17, and 19. Byrne also teaches that the vegetable oil used to produce the vegetable oil-based alkoxylate composition can be soybean oil [0064].
Regarding claim 22, Byrne teaches that soybean oil-based alkoxylate compositions are produced via transesterification between soybean oil and ethoxylated glycerin having 10 moles of ethoxylation [0126].
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claims 1, 3-19, and 21 Byrne doesn’t teach a single embodiment or example meeting all limitation of the invention of claims 1 and 3-20.
Regarding claims 1, 3-6, 8-17, and 21 Byrne does not teach the specific weight percentages or ratios of herbicide/fungicide, surfactant, or alkoxylated glycerides and glycerin present in the composition as embraced by the instant claims.
Finding of a Prima Facia Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claims 1, 3-19, and 21 within the broader scope of Byrne all of the limitations of the invention of claims 1 and 3-19 are met. It would have been prima facie obvious for one having ordinary skill in the art to choose the limitations in the instant claims from those disclosed by Byrne and arrive at this conclusion because such was contemplated by Byrne.
Regarding the weight percentages and ratios of the alkoxylated glycerides and glycerin as specified in claims 1, 8-17, and 21, MPEP 2144.05 states:
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).
Furthermore, Byrne teaches that the weight percent for each mono-, di-, or triacyl glycerin or glycerin in the composition can vary as long as the weight ratio of the total amount of mono-, di-, and triacyl alkoxylated glycerides to alkoxylated glycerin is consistent with the weight ratio limitation [0055] and that the vegetable oil-based alkoxylate composition of the present disclosure increases the performance of the active ingredients in agrochemical formulations as compared to agrochemical formulations that do not contain the vegetable oil-based alkoxylate composition of the present disclosure [0100]. The Applicants' specification provides no evidence that the selected weight percentage ranges or ratios in claims 1 and 8-17 were not due to routine optimization and/or that the results should be considered unexpected compared to the prior art. Due to the performance enhancement properties of the vegetable oil-based alkoxylated composition, it would have been prima facie obvious to a person of ordinary skill in the art at the time of the invention to combine these teachings and alter the weight percentage. One of ordinary skill in the art would have been motivated to change the weight percentage of each alkoxylated glyceride and glycerin as this could be expected to be advantageous for the pesticide performance enhancement activities of the composition.
Furthermore, with regard to claims 1, 3- 6, 11-17, and 21 the weight percentage of herbicide/fungicide present in the composition is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal weight percentage of herbicide/fungicide in order to best achieve the desired results as such would provide advantageous pesticidal effect. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955). In the instant case, Byrne teaches that the amount of pesticide included in the agrochemical formulation of the present disclosure will vary according to a number of parameters, such as the target substrate to be treated, the area to be treated, etc. In general, a rate of application from about five grams to about four kilograms per hectare (g/ha) of pesticide may be suitable [0106]. The Examiner considers it prima facie obvious to optimize the weight percentage of herbicide/fungicide present in the composition, absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the amount of pesticide present would depend on the pesticide chosen, the target to be treated, and the area to be treated and therefore be an optimizable variable.
With regards to the “surfactant” limitation of instant claims 1, 3-6, 8, 11-17, and 21 the prior art teaches the same mixture of alkoxylated glycerides and glycerin as claimed and therefore, the surfactant properties are necessarily present; the Examiner directs attention to MPEP 2112.01 (II) which states: “A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.”
Response to Arguments
Applicant’s arguments, see pg. 11-12, filed 10/23/2025, with respect to the rejection of claims 2, 5, 6, 17, and 18 under 35 U.S.C. 112(b) have been fully considered and are persuasive. The rejections of claims 2, 5, 6, 17, and 18 under 35 U.S.C. 112(b) have been withdrawn.
On pages 13 and 14, Applicant argues that the prior art does not address or solve the problem of finding a suitable surfactant with low eye irritation and aquatic toxicity properties in addition to good efficacy-enhancing properties for use in combination with fungicides or specific herbicides. This is not found persuasive. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., low eye irritation and aquatic toxicity properties) are not recited in the rejected claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Furthermore, the prior art teaches the same alkoxylated glycerides as claimed and therefore, the low eye irritation and aquatic toxicity properties are necessarily present; the Examiner directs attention to MPEP 2112.01 (II) which states: “A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.”
On page 14, Applicant argues that Byrne only generally discloses that its vegetable oil-based alkoxylates can be used to enhance the biological activity of pesticides but does not provide specific examples to support this effect; therefore there is not direction provided to the skilled person to lead to the claimed invention. This is not found persuasive. In response, simply because the prior art “discloses a multitude of effective combinations does not render any particular formulation less obvious." Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989). "[P]icking and choosing may be entirely proper in the making of a 103, obviousness rejection." In re Arkley, 455 F.2d 586, 587 (CCPA 1972).
On page 14, Applicant argues that Byrne does not disclose, teach, or even suggest the claimed weight ratios of monoacyl, diacyl, and triacyl alkoxylated glycerides to alkoxylated glycerin. This is not found persuasive. As described in the obviousness rejection above, the weight percent for each mono-, di-, or triacyl glycerin or glycerin in the composition can vary as long as the weight ratio of the total amount of mono-, di-, and triacyl alkoxylated glycerides to alkoxylated glycerin is consistent with the weight ratio limitation [0055] and that the vegetable oil-based alkoxylate composition of the present disclosure increases the performance of the active ingredients in agrochemical formulations as compared to agrochemical formulations that do not contain the vegetable oil-based alkoxylate composition of the present disclosure [0100]. Due to the performance enhancement properties of the vegetable oil-based alkoxylated composition, it would have been prima facie obvious to a person of ordinary skill in the art at the time of the invention to combine these teachings and alter the weight percentage. Therefore, the argument is not persuasive.
On page 14, Applicant argues that Byrne generally discloses the ethoxylation of oils (triglycerides) whereas the instant invention involves alkoxylating a fatty acid, meaning that the products embraced by Byrne are likely quite different. This is not found persuasive. Please refer to MPEP 2112.01 (II) which states: “A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.” Because Byrne teaches the identical chemical structures to those embraced by the claims, the compounds recited by Byrne and those of the instant claims are identical and have identical properties. Thus, the argument is not persuasive.
On page 14, Applicant argues that there is no teaching in Byrne regarding how to customize or otherwise focus the distribution of reaction products of its products, therefore the Office cannot conclude that the skilled person would know how to optimize the compounds/amounts of Byrne. This is not found persuasive. The Examiner respectfully draws attention to MPEP 2144.05 (II) (A) which states: “’It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions.’ “Byrne teaches that the weight percent for each mono-, di-, or triacyl glycerin or glycerin in the composition can vary as long as the weight ratio of the total amount of mono-, di-, and triacyl alkoxylated glycerides to alkoxylated glycerin is consistent with the weight ratio limitation [0055] and that the vegetable oil-based alkoxylate composition of the present disclosure increases the performance of the active ingredients in agrochemical formulations as compared to agrochemical formulations that do not contain the vegetable oil-based alkoxylate composition of the present disclosure [0100]. The teachings of Byrne indicate that the weight percentage of each mono-, di-, or triacyl glycerin or glycerin in the composition are not particularly critical to the performance of the invention and that the vegetable oil-based alkoxylate composition increased the performance of the active ingredients of the formulation. Therefore, it is clear that the weight percentages of each alkoxylated mono-, di-, and triglyceride and glycerin of the instant invention are the result of routine optimization, therefore the argument is not persuasive and the rejection is maintained.
On pages 14-18, Applicant argues that the specific weight ratios of the ethoxylated mono-, di-, and triglycerides and glycerin are unexpectedly superior at enhancing the performance of herbicides and fungicides when compared to an ethoxylated surfactant derived from soybean oil. This is not found persuasive. Please refer to MPEP 716.02 (b) which details the burden on Applicant to establish that results in a side-by-side comparison to the closest prior art are unexpected and significant. Specifically, Applicant must establish that differences in results are in fact unexpected and unobvious and are of both practical and statistical significance. Additionally, evidence of unexpected properties must be commensurate in scope with the claims.
Differences in results are in fact unexpected and unobvious: The evidence of unexpected results amounts to an improved enhancement of herbicide and fungicide performance rendered by the surfactant composition of the instant invention when compared to surfactants of the prior art. However, as described in the argument above, the teachings of Byrne indicate that the weight percentage of each mono-, di-, or triacyl glycerin or glycerin in the composition are not particularly critical to the performance of the invention and that the vegetable oil-based alkoxylate composition increased the performance of the active ingredients of the formulation. It is clear that the weight percentages of each alkoxylated mono-, di-, and triglyceride and glycerin of the instant invention are the result of routine optimization. Therefore, the differences in results are not unexpected and unobvious in view of the teachings of Byrne.
Differences are of both practical and statistical significance: The evidence of unexpected results amounts to an improved enhancement of herbicide and fungicide performance rendered by the surfactant composition of the instant invention when compared to surfactants of the prior art, therefore the differences are of practical significance. However, there is no statistical significance in weed control between the compounds of the instant invention and the prior art, particularly the Soybean oil+ 20EO data. Furthermore, there is not statistical analysis provided for the bio-efficacy of the surfactant in combination with a fungicide. Therefore, the differences are not of statistical significance.
Evidence of unexpected properties must be in commensurate scope with the claims: The evidence of unexpected properties related to improved performance of an herbicide or fungicide in combination with the surfactant composition of the instant invention, therefore the evidence is in commensurate scope with the claims.
Thus, the Applicant’s argument is not persuasive and the rejection is maintained.
Conclusion
No claims are 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH ANNE MEYERS whose telephone number is (571)272-2271. The examiner can normally be reached Monday-Friday 8am-5pm ET.
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ELIZABETH ANNE MEYERSExaminer, Art Unit 1617
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614