DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Applicant’s arguments, filed 02/04/2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
The examiner notes that a Power of Attorney does not appear to be present in the file wrapper. As best understood by the examiner, a Power of Attorney is required to participate in telephonic interviews, negotiate allowable subject matter, and receive approval for examiner’s amendments. See MPEP 408.
Claim Status
Claims 1, 3-17, and 19-23, are pending.
Claims 20-23 are withdrawn.
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, 3-7, 9-12, and 15-17, stand rejected under 35 U.S.C. 103 as being unpatentable over Ratschinski (WO 2012123408 A1, cited on IDS dated 06/26/2023).
Ratschinski teaches stable liquid herbicide emulsifiable concentrate preparations comprising one or more herbicidal active substances selected from ACCase inhibitors including fenoxaprop, esters of fenoxaprop, etc. (abs, pg 5 ln 21-32, claim 1). Surprisingly stable formulations of emulsifiable concentrates of herbicides can be prepared by combining the active ingredients with specific surfactant-solvent systems (pg 5 ln 15-17). Example 8 discloses a composition comprising fenoxaprop-P-ethyl at 7.76 wt%, Emulsogen EL 400 (fatty acid alkoxylate, non-ionic surfactant) at 5.00 wt%, Atplus 309F LM (mixture of 80% sorbitan trioleate ethoxylate (Tween® 85), sorbitan monooleate (Span® 80), and 5% dodecylbenzolsulfonate isopropylammonium salt, sorbitan derivative) at 10.00 wt%, Genagen 4166 at 15.00 wt%, Rhodacal 60 BE (sulfonated surfactant) at 5.00 wt%, Soprophor 796/P at 5.00 wt%, and Solvesso 200 ND (organic solvent, mixture of C9-C11 aromatic hydrocarbon) at 36.71 wt% (table 1 composition 8, pg 39). Suitable non-aromatic non-ionic surfactants include Emulsogen EL 400, fatty alcohol alkoxylates having 10 to 24 carbon atoms, etc. (pg 18 ln 14 to pg 19 ln 1). Surfactants include dodecylbenzenesulfonic acid and salts thereof, such as the calcium salt (pg 21 ln 17-20). The amount of fenoxaprop can range from 1-20 wt%, the non-ionic emulsifiers range from 1-60 wt%, anionic emulsifiers can range from 0.5-30 wt%, and formulation auxiliaries can range from 0.2-40 wt% (pg 29 ln 12 to pg 30 ln 6). Other active ingredients can be used which do not interfere with the stability of the formulation (abs). Suitable herbicides include quizalofop-ethyl, quizalofop-P-ethyl, etc. (pg 25 ln 17-27).
Regarding the newly amended active agent of claims 1 and 3, it would have been obvious substitute quizalofop-P-ethyl, etc., for the ACCase inhibitors from the working example above, and in the same amounts, where the reference teaches both are suitable ACCase inhibitors which do not interfere with the stability of the formulation, as a matter of substituting equivalents known for the same purpose (i.e., ACCase inhibitors). See MPEP 2144.06(II).
Purely arguendo, if somehow it would not have been obvious to substitute the ACCase inhibitors taught by the reference, it would have been obvious to further include quizalofop-P-ethyl, where the reference teaches other suitable herbicides can be included, such as quizalofop-P-ethyl, in order to tailor the composition for desired active properties for different treatments.
Regarding the alkoxylated alcohol of claim 1, it would have been obvious to substitute other suitable non-ionic surfactants for the Emulsogen EL 400, such as a fatty alcohol alkoxylate having 10-24 carbon atoms, as taught by the reference, thereby overlapping the instantly claimed C8-20 alkoxylated alcohol. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding the ratio of claims 1 and 15, where quizalofop-p-ethyl made obvious above is included at 7.76 wt%, Rhodacal 60 BE (dodecylbenzosulfonate-calcium, sulfonated surfactant) is present at 5.00 wt%, the fatty alcohol alkoxylate having 10-24 carbon atoms made obvious above is present at 5.00 wt%, and Atplus 309F LM (sorbitan derivative) is present at 5.00 wt%, the ratio of quizalofop-P-ethyl to surfactant blend is 7.76:15, or about 1:1.9, falling within the claimed range. Further, it would have been well within the relative skills of the skilled artisan to routinely adjust the ratio of the active agent to surfactant in order to achieve desired physical properties. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A).
Regarding claims 4 and 5, Rhodacal 60 BE is dodecylbenzosulfonate-calcium, a salt of dodecyl benzene sulfonic acid.
Regarding claim 6, where fatty alcohol alkoxylates having 10-24 carbon atoms are made obvious above, it would have been obvious to select from within the disclosed ranges, such as a linear or branched C10-14 ethoxylated alcohol. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claim 7, sorbitan trioleate ethoxylate (Tween® 85) is an ethoxylated sorbitan ester and sorbitan monooleate (Span® 80) is a sorbitan ester.
Regarding claims 9 and 10, the composition made obvious above comprises quizalofop-P-ethyl at 7.76 wt%, Rhodacal 60 BE (dodecylbenzosulfonate-calcium, sulfonated surfactant) at 5.00 wt%, fatty alcohol alkoxylate having 10-24 carbon atoms at 5.00 wt%, and Atplus 309F LM (sorbitan derivative) at 5.00 wt%. Where every component falls within those amounts instantly claimed, the limitation are met.
Regarding claims 11 and 17, the composition made obvious above is in the form of an emulsifiable concentrate composition.
Regarding claim 12, the composition made obvious above comprises Solvesso 200 ND, an organic solvent.
Regarding claim 16, where the amount of active can range from 1-20 wt%, and the amount of emulsifiers (surfactants) can range from 1-60 wt% and 0.5-30 wt%, it would have been well within the relative skills of the skilled artisan to adjust the amount of active agent and surfactants in the composition to optimize the stability and properties of the desired formulation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144(II)(A). In this case, the general conditions of the amount of active agent and solvent, with overlapping ranges, has been taught by the prior art. As such, it would not have been inventive for the skilled artisan to have discovered the optimum or workable ranges of these ingredients via routine experimentation.
Response to Arguments
First, Applicants assert Ratschinski does not identify quizalofop as the defined arylphenoxypropionate herbicide of a composition, and none of the examples formulate a quizalofop active. Applicants assert quizalofop is in a list of additional herbicides that may also be compatible with the general solvent-surfactant system. Applicants assert such generic flexibility does not suggest replacing the exemplified fenoxaprop-type ACCase inhibitor with quizalofop, nor does it teach a stable quizalofop-based EC absent metrobuzin.
Second, Applicants assert the exemplified surfactant blends in Ratschinski use different classes and combinations, and although the general laundry list of potential emulsifies include many alternatives, the reference contains no teachings to select specifically a sulfated surfactant, a C8-20 fatty alcohol alkoxylate, and a sorbitan derivative as instantly claimed. Applicants assert Ratschinski does not point the skilled person to omit the triglyceride and tristyrylphonol alkoxylates that anchor its working examples, or to prefer sulfates over the sulfonates actually used.
Third, Applicants assert Ratschinski does not suggest the claimed herbicide to surfactant ratio of 1:0.5 to 1:10, and teaches independent, broad ranges for totals. Applicants assert that in the working examples, the “surfactant system” is a composite of several classes, not the claimed blend, and any ratio would be an artifact of post hoc selection rather than an express or implicit teaching. Applicants assert Ratschinski neither anticipates nor discloses an overlapping range for the claimed herbicide to surfactant ratio.
Fourth, Applicants assert Ratschinski is solving a different problem, achieving a chemically and physically stable co-formulation of metrobuzin with specific ACCase inhibitors and safeners, while the instant is to provide a stable herbicidal and EC composition comprising quizalofop. Applicants assert the instantly claimed combination has been shown to confer improved emulsification and stabilization to quizalofop compositions as shown in examples 4 and 5.
Fifth, Applicants assert Ratschinski cautions that formulation stability is sensitive to the nature and balance of the components, and that increasing the number of structurally different active restricts formulation freedom. Applicants assert against that backdrop, replacing fenoxaprop with quizalofop and changing the surfactant system would require hindsight and experimentation, not routine experimentation.
First, respectfully, this argument is not persuasive. While Ratschinski may not include quizalofop as the ACCase inhibitor in the working examples, the reference more broadly teaches other suitable active agents, including quizalofop, an ACCase inhibitor, can be used and does not interfere with the stability of the formulations. From this, the skilled artisan would recognize the interchangeability of quizalofop and fenoxaprop, where both are ACCase inhibitors, and both are taught to be suitable for use in the stable compositions. See MPEP 2144.06(II). Regarding applicants argument of a generic teaching, a reference may be relied upon for all it teaches, including non-preferred or non-exemplified embodiments. Here, where quizalofop is taught to be suitable, it is obvious to include for the same reasons discussed above and of record. Purely arguendo, even if somehow it would not have been obvious to substitute quizalofop for fenoxaprop, it would have been obvious to further include quizalofop for the same reasons discussed above. The examiner notes that the claims recite the open language “comprising,” and does not exclude additional unrecited elements.
Second, respectfully, this argument is not persuasive. The working example of Ratschinski comprises an ACCase inhibitor, a sulfated surfactant, a sorbitan derivative, and a non-ionic surfactant. As discussed above, it would have been obvious to substitute the non-ionic surfactant from the working example to other non-ionic surfactants taught to be suitable by Ratschinski, such as a fatty alcohol alkoxylate having 10-24 carbon atoms, thereby overlapping the instantly claimed C8-20 alkoxylated alcohol. The examiner notes that where the claims recite the open language “comprising,” the claims do not exclude the inclusion of additional unrecited elements. Further, the examiner notes that instant claim 4 appears to allow for sulfonates to read on sulfated surfactants.
Third, respectfully, this argument is not persuasive. As discussed above, where quizalofop-p-ethyl made obvious above is included at 7.76 wt%, Rhodacal 60 BE (dodecylbenzosulfonate-calcium, sulfonated surfactant) is present at 5.00 wt%, the fatty alcohol alkoxylate having 10-24 carbon atoms made obvious above is present at 5.00 wt%, and Atplus 309F LM (sorbitan derivative) is present at 5.00 wt%, the ratio of quizalofop-P-ethyl to surfactant blend is 7.76:15, or about 1:1.9, falling within the claimed range. The instantly claimed limitation appears to simply require the ratio of the blend of sulfated surfactant, C8-20 alkoxylated alcohol, and sorbitan derivative, and the active to be 1:0.5 to 1:10. Accordingly, where the composition made obvious above comprises the same components as instantly claimed, and in amounts that overlap the instantly claimed ratio, the limitation is met. Further, it would have been well within the relative skills of the skilled artisan to routinely adjust the ratio of the active agent to surfactant in order to achieve desired physical properties. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A).
Fourth, respectfully, this argument is not persuasive. Both Ratschinski and the instant claims are drawn to stable formulations comprising ACCase inhibitors and a surfactant blend. Applicants point to examples 4 and 5 for data to support the argument of improved emulsification and stabilization. Looking at examples 4 and 5 of the instant specification, while it does appear that the example 1 composition, comprising a specific blend of quizalofop-P-tefuryl, lauryl alcohol ethoxylate, polyoxyethylene sorbitan monooleate, and calcium dodecyl benzenesulfonic acid, in an active agent to surfactant blend ratio of 1:4, has improved stability over compositions comprising only sorbitan ester, only C8-20 alcohol ethoxylate, and other surfactants used alone, the data does is not comparative to the closest prior art which already comprises a blend of two of the three instantly claimed surfactants. See MPEP 716.02(e). From the results, it is not clear to the examiner if the three surfactant mixture as instantly claimed would provide an improvement over the surfactant blend of Ratschinski, as this comparison is not shown. Currently, the data simply shows that a surfactant blend is improved over particular surfactants used alone, and it is not known if all surfactant blends would be improved in any ratio, or only specific surfactant blends in specific ratios are critical to achieve the increased stability. Purely arguendo, even if unexpected results were shown, currently, the data is not commensurate in scope with the instant claims. Table 4 tests one embodiment comprising a single species from the broadly claimed surfactant classes, and in a single ratio with a single quizalofop derivative, under specific testing conditions. As such, it does not appear that the data from the single embodiment can be reasonably extended to include the full scope of the instant claims.
Fifth, respectfully, this argument is not persuasive. Ratschinski explicitly teaches that other active agents that are suitable for use in the compositions include those which do not interfere with the stability of the formulations. Accordingly, where fenoxaprop and quizalofop-P-ethyl are taught as a suitable active agents, it would be reasonably expected that quizalofop-P-ethyl would not cause stability issues, and the skilled artisan would recognize their interchangeability for the same reasons discussed above. Regarding changing the surfactant system, the composition made obvious above was formulated by simply substituting one suitable non-ionic surfactant for another suitable non-ionic surfactant, both taught by Ratschinski to be suitable for use in the compositions.
Claims 6, 8, and 19, stand rejected under 35 U.S.C. 103 as being unpatentable over Ratschinski (WO 2012123408 A1, cited on IDS dated 06/26/2023), as applied to claims 1, 3-7, 9-12, and 15-17 above, and further in view of Lindner (US 20160192649 A1), as evidenced by PubChem (Polyoxyethylene sorbitan monooleate, retrieved 2024).
Ratschinski is discussed above and further teach sorbitan esters in the form of Span® or Tween® are suitable surfactants (pg 19 ln 13).
Ratschinski does not specifically teach polyoxyethylene sorbitan monooleate as the sorbitan derivative, nor lauryl alcohol ethoxylate as the alkoxylated alcohol. Further, claim 6 is discussed above, and for the sake of argument, if it would not have been obvious to select the alkoxylated alcohols of claim 6 from the fatty alcohol alkoxylates having 10-24 carbon atoms taught by Ratschinski, the following also applies.
Lindner teaches agrochemical active formulations that may be in the form of emulsifiable concentrates, comprising quizalofop-p, fenoxaprop, fluazifop-p, etc., where it was known include surfactants such as polysorbate 80 (sold under the Tween® brand) and lauryl alcohol ethoxylate (¶¶ 105, 120, 124, 176). As evidenced by PubChem, polysorbate 80 is synonymous with polyoxyethylene sorbitan monooleate (synonyms).
Regarding claim 6, where Ratschinski teaches alkoxylated alcohols as surfactants, it would have been obvious to include other known alkoxylated alcohols suitable for emulsifiable concentrate formulations comprising quizalofop, etc., such as lauryl alcohol ethoxylate, as taught by Lindner. See MPEP 2143(I)(B).
Regarding claim 8, where Ratschinski teaches sorbitan esters in the form of Tween® are suitable, it would have been obvious to include other known sorbitan esters suitable for emulsifiable concentrate formulations comprising quizalofop, etc., such as polysorbate 80 (a Tween® surfactant), as taught by Lindner. See MPEP 2143(I)(B).
Regarding claim 19, the emulsifiable concentrate of claim 17 is made obvious above, and would have been further obvious to include other known sorbitan esters suitable for emulsifiable concentrate formulations, such as polysorbate 80 (a Tween® surfactant). Additionally, it would have been obvious to include lauryl alcohol ethoxylate as the alkoxylated alcohol surfactant, where lauryl alcohol ethoxylate was known to be suitable for emulsifiable concentrations comprising quizalofop, etc., as discussed above. See MPEP 2143(I)(B).
Response to Arguments
Applicants assert Lindner does not cure the deficiencies of Ratschinski.
Respectfully, this argument is not persuasive for the same reasons discussed above. Accordingly, the claims stand rejected for the same reasons above and of record.
Claims 13 and 14 stand rejected under 35 U.S.C. 103 as being unpatentable over Ratschinski (WO 2012123408 A1, cited on IDS dated 06/26/2023), as applied to claims 1, 3-7, 9-12, and 15-17 above, and further in view of Battal et al (EP 2666355 A1).
Ratschinski is discussed above and further teaches suitable solvents include aliphatic and/or aromatic hydrocarbons, such as mineral oils, etc. (pg 14).
The reference does not teach wherein the solvent is one of those of claims 13 and 14.
Battal et al teach herbicidal compositions comprising aryloxyphenoxy propionic acid herbicide, where it was known to include one or more C6-C14 fatty acid ester solvents (abs, ¶ 6). Co-solvents that are different from the fatty acid ester solvent were known to be included to further improve the stability of the herbicide mixture and the concentrated compositions, such as aromatic hydrocarbons, mineral oils, etc. (¶ 35).
Regarding claim 13 and 14, it would have been obvious to include aromatic hydrocarbons as a suitable solvent, as taught by Ratschinski. Further, it would have been obvious to further include other solvents that were known to be included with aromatic hydrocarbons, etc., including C6-C14 fatty acid ester solvents, where the combination of solvents was known to further improve the stability of herbicidal compositions comprising aryloxyphenoxy propionic acid herbicides, as taught by Battal et al.
Response to Arguments
Applicants assert Battal et al do not cure the deficiencies of Ratschinski.
Respectfully, this argument is not persuasive for the same reasons discussed above. Accordingly, the claims stand rejected for the same reasons above and of record.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSHUA A ATKINSON whose telephone number is (571)270-0877. The examiner can normally be reached M-F: 9:00 AM - 5:00 PM + Flex.
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/JOSHUA A ATKINSON/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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