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 .
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 09/04/2026 has been entered.
Applicants' arguments, filed 09/04/2026, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
Claim Status
Claims 1-19, and 21-28, are pending.
Claims 15, 18, and 19, are withdrawn.
Claim Interpretation
The examiner best understands ethanolamine as recited in claim 23 to be synonymous with Applicants’ elected species of monoethanolamide.
Claim Objections
Claim 1 is objected to because of the following informalities: the “is” following “monohydric alcohol B.1” and “polyhydric alcohol B.2” should be removed for proper grammar. Appropriate correction is required.
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.
Claims 1-14, 16, 17, 24, and 26-28, are rejected under 35 U.S.C. 103 as being unpatentable over Long (US 20110039702 A1), in view of McKnight et al (US 20130123104 A1, hereinafter “McKnight”) and Cosmetic Ingredient Review (MEA, CIR Expert Panel Meeting, 2011, pp. 1-239, hereinafter “CIR”), as evidenced by PubChem (Propylene Glycol, retrieved 2026).
Long teaches stable aqueous liquid herbicidal compositions comprising 20-35 wt% of a water-soluble herbicidal ingredient, a C8-C16 alkyl ether sulfate from about 3-35 wt%, organic solvent from 1-20 wt%, etc. (abs, ¶¶ 22, 25, examples, claims 1, 6, 9). The water-soluble herbicidal ingredient includes glufosinate and salts thereof, including glufosinate ammonium, and mixtures thereof (¶¶ 2, 16, examples). Suitable solvents include methanol, ethanol, isopropanol, propylene glycol, glycerol, dipropylene glycol, and combinations are also suitable (¶ 23). As evidenced by PubChem, propylene glycol is synonymous with 1,2-propylene glycol (synonyms, structure). In embodiments isopropanol is used in combination with dipropylene glycol (ex. 8, 11). The water-soluble herbicidal ingredient is usually provided in a 50 wt% aqueous solution, and an equal amount of water is provided with the water-soluble herbicidal ingredient; additional water may be added as necessary (¶ 20). The wt% for the water-soluble herbicidal active ingredient reflects the amount of herbicide only, not the total solution amount (¶ 20). The alkyl ether sulfates may contain linear aliphatic groups having 8-16 carbon atoms, and the degree of ethoxylation may be from 1-10 moles of ethylene oxide, usually 2-4 moles of ethylene oxide (¶ 21). Examples include sodium lauryl ether sulfate, ammonium lauryl ether sulfate, and other salts of lauryl ether sulfate (¶ 21). The composition may optionally include auxiliary agents commonly used in herbicide formulations and known to those skilled in the art, such as carriers, pigments, defoamers (i.e., antifoaming agents), etc. (¶ 32). In particular embodiments, for example, the defoamer was included at 0.25 and 0.50 wt% (examples 1-12).
Long does not teach Applicant’s elected species of the compound of formula (I), an embodiment comprising B.1, B.2, and B.3, nor a single embodiment comprising the amounts of the components as instantly claimed.
McKnight teaches agricultural pesticide compositions comprising herbicides, such as glufosinate salts, and one or more surfactants selected from alkyl ether sulfate surfactants, including sodium laureth sulfate, ammonium laureth sulfate, monoethanolamine laureth sulfate, etc. (abs, ¶¶ 171, 173, 336).
CIR teaches monoethanolamine laureth sulfate (MEA-laureth sulfate, CAS 68184-04-3) is the ethanolamine salt of sulfated, ethoxylated lauryl alcohol, wherein the number of ethylene glycol units range from 1 to 4 (CIR Panel Book Page 34). The structure of monoethanolamine laureth sulfate is as follows:
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Regarding the herbicidal compound of claim 1, it would have been obvious to select from glufosinate or salts thereof, or combinations thereof, as taught by Long.
Regarding the amount of the herbicidal compound of claim 1, it would have been obvious to include 20-35 wt% of glufosinate or salts thereof, or combinations thereof, as taught by Long.
Regarding the mixture of alcoholic solvents of claim 1, where the working embodiments of Long comprise isopropanol and dipropylene glycol, and it would have been obvious to further include an additional solvent, such as 1,2-propylene glycol or glycerol, where mixtures of solvents are taught by Long to be suitable.
Regarding the water of claim 1, where the compositions of Long are aqueous liquid compositions, the compositions necessarily comprise water. Where Long teaches liquid aqueous formulations, and that the herbicidal active ingredient is usually included in equal amounts with water, where the herbicidal active agent ranges from 20-35 wt%, it would have been obvious to include 20-35 wt% water, as taught by Long. 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 compound of formula (I) of claim 1, it would have been obvious to modify the compositions of Long by substituting monoethanolamine laureth sulfate for the alkyl ether sulfate salts of Long, where monoethanolamine laureth sulfate was a known surfactant suitable for agricultural pesticide compositions comprising glufosinate, as taught by McKnight, and where Long teaches other salts of laureth sulfate are suitable.
Further, it would have been obvious to formulate the monoethanolamine laureth sulfate surfactant wherein n is equal to 3, as taught by Long and CIR, thereby meeting the elected species.
Regarding the amount of the compound of formula (I) of claim 1, it would have been obvious to formulate the composition comprising the monoethanolamine laureth sulfate surfactant made obvious above in amounts ranging from 3-35 wt%, as taught by Long. 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 amount of B.1-B.3 of claims 1-3, it would have been obvious to include solvents B.1-B.3 in amounts ranging from 1-20 wt%, as taught by Long, where the solvents are taught to include methanol, ethanol, isopropanol, propylene glycol, glycerol, dipropylene glycol, and combinations. 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). Further, it would have been well within the relative skills of the skilled artisan to have routinely adjusted the amount of each solvent in order to achieve desired formulation 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 claim 4, it would have been obvious to formulate the compositions with 20-35 wt% of the herbicidal active ingredient, as taught by Long.
Regarding claim 5, it would have been obvious to select from among the suitable solvents taught by Long, such as ethanol as solvent B.1.
Regarding claim 6, it would have been obvious to select from the suitable solvents taught by Long, such as 1,2-propylene glycol as solvent B.2.
Regarding claims 7 and 8, it would have been obvious to formulate the composition made obvious above with 20-35 wt% glufosinate or salts thereof, or mixtures thereof, and 1-20 wt% of ethanol, 1,2-propylene glycol, and dipropylene glycol, and water, for the same reasons discussed above by Long. 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 amount of water of claims 7 and 8, where Long teaches liquid aqueous formulations, and that the herbicidal active ingredient is usually included in equal amounts with water, where the herbicidal active agent ranges from 20-35 wt%, it would have been obvious to include 20-35 wt% water, as taught by Long. 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 9, the number of ethylene oxide repeating units of 3 is made obvious above by Long and CIR, thereby meeting the claimed limitation.
Regarding claim 10, the MEA-laureth sulfate surfactant made obvious above comprises hydrogens in the RA, RB, RC, and RD, positions of formula (I), thereby meeting the claimed limitations.
Regarding claim 11, the M+ cation in the MEA-laureth sulfate surfactant made obvious above is a protonated monoethanolamine, which appears to read on an ammonium cation of a primary amine as instantly claimed.
Regarding claim 12, the M+ cation in the MEA-laureth sulfate surfactant made obvious above is a protonated monoethanolamine, wherein the R1-R4 of formula (II) are H or C2 alkyl, wherein one of the groups is substituted with OH, thereby meeting the claimed limitations.
Regarding claims 13 and 14, the M+ cation in the MEA-laureth sulfate surfactant made obvious above is a monoethanolammonium cation, i.e., protonated ethanolamine, as illustrated by CIR above, thereby meeting the claimed limitations.
Regarding claim 16, it would have been obvious to formulate the composition made obvious above with 20-35 wt% glufosinate or salts thereof, or mixtures thereof, 1-20 wt% of ethanol and 1,2-propylene glycol, and 20-35 wt% water, for the same reasons discussed above by Long.
Regarding the amount of the compound of formula (I) of claim 16, it would have been obvious to formulate the composition comprising the MEA-laureth sulfate surfactant made obvious above in amounts ranging from 3-35 wt%, as taught by Long for the same reasons discussed above. See MPEP 2144.05(I).
Regarding claim 17, it would have been obvious to further include auxiliary agents commonly used in herbicide formulations and known to those skilled in the art, such as carriers, pigments, defoamers (i.e., antifoaming agents), etc., as taught by Long. It would have been obvious to include known amounts, such as 0.25 and 0.50 wt% for defoamers, as used in the working examples of Long.
Regarding claim 24, it would have been obvious to formulate the composition made obvious above with 20-35 wt% glufosinate or salts thereof, or mixtures thereof, 1-20 wt% of ethanol and 1,2-propylene glycol, and 20-35 wt% water, for the same reasons discussed above by Long, overlapping the claimed ranges. 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 amount of the compound of formula (I), it would have been obvious to formulate the composition comprising the MEA-laureth sulfate surfactant made obvious above in amounts ranging from 3-35 wt%, as taught by Long for the same reasons discussed above. See MPEP 2144.05(I).
Regarding claims 26 and 27, it would have been obvious to select from glufosinate ammonium salt as the glufosinate, as taught by Long.
Regarding claim 28, it would have been obvious to formulate the composition made obvious above with 20-35 wt% glufosinate or salts thereof, or mixtures thereof, and 1-20 wt% of ethanol, 1,2-propylene glycol, and dipropylene glycol, and 20-35 wt% water, for the same reasons discussed above by Long. 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).
It would have been obvious to formulate the composition comprising the monoethanolamine laureth sulfate surfactant (R = C12 alkyl, M+ = ethanolamine) made obvious above in amounts ranging from 3-35 wt%, as taught by Long. 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).
Claims 21-23 and 25, are rejected under 35 U.S.C. 103 as being unpatentable over Long (US 20110039702 A1), McKnight et al (US 20130123104 A1, hereinafter “McKnight”), and Cosmetic Ingredient Review (MEA, CIR Expert Panel Meeting, 2011, pp. 1-239, hereinafter “CIR”), and further in view of Long et al (US 20190110469 A1, hereinafter “Long ‘469”).
The combination of Long, McKnight, and CIR and discussed above but do not specifically teach wherein the formulations are free of a nonionic surfactant.
Long ‘469 teaches stable liquid herbicidal compositions free of alkyl polyglucosides, and includes glufosinate and/or a salt thereof, an alkyl ether sulfate or a salt thereof, etc., wherein the alkyl ether sulfate is according to the average formula (I): R—(OCH2CH2)n—OSO4 (I), wherein R is linear or branched alkyl group having from 8 to 18 carbon atoms and wherein the subscript n ranges from 1 to 10 (abs, tables 1, 2). Alkyl polyglucoside surfactants are typically added to aqueous herbicidal compositions of glufosinate and/or salts thereof, however, alkyl polyglucoside surfactants added to such aqueous herbicidal compositions can increase undesirable foaming characteristics of the glufosinate, as well as increase the viscosity of such formulations, which is generally undesirable from a handling perspective (¶ 4). It was known to formulate aqueous herbicidal compositions including high concentrations of glufosinate and/or salts thereof that are stable without the need for alkyl polyglucoside surfactants and have low viscosities for handling (¶ 7).
Regarding claims 21, 22, and 25, it would have been obvious to modify the composition made obvious above by formulating the composition free from the alkyl polyglucoside, where it was known that alkyl polyglucosides increase undesirable forming characteristics and increase viscosity which is taught by Long ‘469 as being undesirable. The skilled artisan would have had a reasonable expectation of success in formulating the composition free from an alkyl polyglucoside where Long ‘469 teaches stable glufosinate compositions comprising an alkyl ether sulfate or a salt thereof, in combination with solvents including dipropylene glycol and propylene glycol monomethyl ether, without the use of alkyl polyglucoside. Further, where Long teaches nonionic surfactants are optional, and where Long ‘469 does not appear to include any nonionic surfactants, it would have been obvious to formulate the compositions free of nonionic surfactants.
Regarding claim 23, where monoethanolamine lauryl ether sulfate is made obvious above, it appears the limitation of the cation M+ selected from ethanolamine is met.
Claims 1-14, 16, 17, 24, and 26-28, are rejected under 35 U.S.C. 103 as being unpatentable over Baur et al (US 20200367504 A1, hereinafter “Baur”), in view of McKnight et al (US 20130123104 A1, hereinafter “McKnight”) and Cosmetic Ingredient Review (MEA, CIR Expert Panel Meeting, 2011, pp. 1-239, hereinafter “CIR”), as evidenced by PubChem (Propylene Glycol, retrieved 2026).
Baur teaches compositions comprising water-soluble herbicides, wherein the composition comprises water soluble herbicide, solvents, co-solvents, and surfactants (abs, ¶¶ 20-33, 187). The water-soluble herbicide includes glufosinate or salts thereof, including glufosinate ammonium salt (¶¶ 36, 37, 145, 159, 187). The water-soluble herbicide is included in an amount of 1-80 wt%, preferably 10-35 wt% (¶ 145). Frequently suitable combinations of different solvents include methanol, ethanol, isopropanol, etc. (¶ 140). Suitable co-solvents include propylene glycol, glycerol, dipropylene glycol, etc. (¶¶ 81). As evidenced by PubChem, propylene glycol is synonymous with 1,2-propylene glycol (synonyms, structure). Surfactants, including anionic surfactants include alkyl ether sulfates, including lauryl ether sulfate sodium salt, organic salts based on alkanolamine, etc. (¶¶ 94, 187). The alkyl ether sulfates can comprise 1-20 alkyleneoxy units, most preferably 3 to 5 (¶ 20). The alkyl ether sulfates are included from 0.1 to 97 wt%, especially 2 to 70 wt%, very particularly 5 to 60 wt% (¶ 145). In embodiments, the solvents are included at 2 wt% (table 2). Cosolvents are included at 0-30 wt% (¶ 145, claim 16). The amount of water can range from 0.01 to 95 wt%, preferably 5% to 85% by weight, especially 10% to 60% by weight (¶ 145, claim 16). Further surfactants including anionic, nonionic, cationic, and zwitterionic surfactants can be included from 0 to 25 wt% (¶¶ 32, 92, claims 2, 16). The compositions may also further include defoamers (¶ 123).
Baur does not appear to teach Applicant’s elected species of the compound of formula (I), an embodiment comprising B.1, B.2, and B.3, nor a single embodiment comprising the amounts of the components as instantly claimed.
McKnight teaches agricultural pesticide compositions comprising herbicides, such as glufosinate salts, and one or more surfactants selected from alkyl ether sulfate surfactants, including sodium laureth sulfate, ammonium laureth sulfate, monoethanolamine laureth sulfate, etc. (abs, ¶¶ 171, 173, 336).
McKnight does not appear to specifically teach the number of ethylene glycol units of the monoethanolamine laureth sulfate.
CIR teaches monoethanolamine laureth sulfate (MEA-laureth sulfate, CAS 68184-04-3) is the ethanolamine salt of sulfated, ethoxylated lauryl alcohol, wherein the number of ethylene glycol units range from 1 to 4 (CIR Panel Book Page 34). The structure of monoethanolamine laureth sulfate is as follows:
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Regarding the herbicidal compound of claim 1, it would have been obvious to include 1-80 wt%, preferably 10-35 wt%, of glufosinate or salts thereof, as taught by Baur, overlapping the claimed range. 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 mixture of alcoholic solvents of claim 1, where Baur teaches the compositions comprise solvents and cosolvents, and mixtures thereof are taught to be suitable, it would have been obvious to include methanol, ethanol, isopropanol, and mixtures thereof as a solvent, and cosolvents including 1,2-propylene glycol, glycerol, and dipropylene glycol, as taught to be suitable by Baur.
Regarding the water of claim 1, the composition of Baur made obvious above are taught to comprise water. It would have been obvious to include water in amounts ranging from 0.01 to 95 wt%, preferably 5% to 85% by weight, especially 10% to 60% by weight, as taught by Bauer. 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 compound of formula (I) of claim 1, it would have been obvious to modify the compositions of Baur by substituting monoethanolamine laureth sulfate for the alkyl ether sulfate salts of Baur, where monoethanolamine laureth sulfate was a known surfactant suitable for agricultural pesticide compositions comprising glufosinate, as taught by McKnight, and where Baur teaches salts of laureth sulfate are suitable, including monoethanolamine salts.
Further, it would have been obvious to formulate the monoethanolamine laureth sulfate surfactant wherein n is equal to 3, where Baur teaches alkyleneoxide units of 3 are suitable, and a where ethylene glycol repeating units of 3 were known for known to be suitable for monoethanolamine laureth sulfate, as taught by CIR, thereby meeting the elected species.
Regarding the amount of the compound of formula (I) of claim 1, it would have been obvious to formulate the composition comprising the monoethanolamine laureth sulfate surfactant made obvious above in amounts ranging from 0.1 to 97 wt%, especially 2 to 70 wt%, very particularly 5 to 60 wt%, as taught by Baur. 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 amount of B.1, B.2, and B.3 of claims 1-3, it would have been obvious to include solvents B.1-B.3 in amounts overlapping the claimed range where solvents at 2 wt% are disclosed in embodiments and cosolvents are taught to range from 0-30 wt%, as taught by Baur. 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). Further, the skilled artisan would have been reasonably expected to determine the working range for the solvent mixtures in order to achieve desired formulation properties, stability, etc. 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 claim 4, it would have been obvious to formulate the composition with 1-80 wt%, preferably 10-35 wt%, of glufosinate or salts thereof, as taught by Baur, overlapping the claimed range. 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 5, it would been obvious to select from ethanol as solvent B.1, as taught by Baur.
Regarding claim 6, it would have been obvious to select from the suitable solvents taught by Baur, such as 1,2-propylene glycol as solvent B.2.
Regarding claims 7 and 8, it would have been obvious to formulate the composition made obvious above with glufosinate or salts thereof, ethanol, 1,2-propylene glycol, dipropylene glycol, and water, in amounts overlapping the claimed ranges, for the same reasons discussed above by Baur. 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 9, the number of ethylene oxide repeating units of 3 is made obvious above by Baur and CIR, thereby meeting the claimed limitation.
Regarding claim 10, the MEA-laureth sulfate surfactant made obvious above comprises hydrogens in the RA, RB, RC, and RD, positions of formula (I), thereby meeting the claimed limitations.
Regarding claim 11, the M+ cation in the MEA-laureth sulfate surfactant made obvious above is a protonated monoethanolamine, which appears to read on an ammonium cation of a primary amine as instantly claimed.
Regarding claim 12, the M+ cation in the MEA-laureth sulfate surfactant made obvious above is a protonated monoethanolamine, wherein the R1-R4 of formula (II) are H or C2 alkyl, wherein one of the groups is substituted with OH, thereby meeting the claimed limitations.
Regarding claims 13 and 14, the M+ cation in the MEA-laureth sulfate surfactant made obvious above is a monoethanolammonium cation, i.e., protonated ethanolamine, as illustrated by CIR above, thereby meeting the claimed limitations.
Regarding claim 16, it would have been obvious to formulate the composition made obvious above with glufosinate or salts thereof, ethanol, 1,2-propylene glycol, dipropylene glycol, water, and the compound of formula (I), in amounts overlapping the claimed ranges, for the same reasons discussed above by Baur. 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 17, it would have been obvious to further include anionic, nonionic, cationic, or zwitterionic surfactants, in amounts up to 25 wt%, as taught by Baur, overlapping the claimed range. 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).
Additionally and alternatively, it would have been obvious to include further solvents and antifoaming agents, as taught by Baur. Regarding their amounts, it would have been well within the relative skills of the skilled artisan to determine the optimal working ranges for additional solvents and antifoaming agents, in order to achieve desired formulation properties, stability, foaming, etc. 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 claim 24, it would have been obvious to formulate the composition made obvious above with glufosinate or salts thereof, ethanol, 1,2-propylene glycol, dipropylene glycol, water, and the compound of formula (I) in amounts overlapping the claimed ranges, for the same reasons discussed above by Baur. 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 claims 26 and 27, it would have been obvious to select from glufosinate ammonium salt as the glufosinate, as taught by Baur.
Regarding claim 28, it would have been obvious to formulate the composition made obvious above with glufosinate or salts thereof, ethanol, 1,2-propylene glycol, dipropylene glycol, and water, in amounts overlapping the claimed ranges, for the same reasons discussed above by Baur. 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).
It would have been obvious to formulate the composition comprising the monoethanolamine laureth sulfate surfactant (R = C12 alkyl, M+ = ethanolamine) made obvious above in amounts ranging from 0.1 to 97 wt%, especially 2 to 70 wt%, very particularly 5 to 60 wt%, as taught by Baur. 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).
Response to Arguments
First, Applicants assert unexpected results of the claimed combination. Applicants assert Examples 1-9 of Tables M.1 and M.2 were unexpectedly stable compared to C.Ex. 1-9 from Table MC.1, demonstrating that when any one of B.1-B.3 are omitted, the formulations were not stable. Applicants assert the claims are commensurate in scope with the results. Applicants assert Long and Baur do not disclose or suggest that the combination of B.1-B.3 would yield a stable single-phase aqueous glufosinate composition. Applicants assert where Long teaches salts of glufosinate and sodium salts of alkylether sulfates in their examples, the specific counterion would not be expected to have a significant effect on phase stability.
Second, regarding claims 21, 22, and 25, Applicants assert Long requires an alkyl polyglucoside component, which is a nonionic surfactant. Similarly, Applicants assert Baur requires an n-alkylglucamide component, which is a nonionic surfactant.
First, respectfully, this argument is not persuasive. From Table MC.1, the examiner does agree with Applicants that the formulations comprising B.3 and B.1, without the third solvent do not appear to result in stable formulations comprising glufosinate ammonium and the MEA-LES tested, which does not appear to be taught by the prior art of record, however, it does not appear the results can be reasonably extended to the full scope of the instant claims. From Tables M.1 and M.2, only glufosinate ammonium is tested as the active ingredient, one specific MEA-LES is the only tested compound of formula (I), and all of the components, including those of A, B, C, and D, are tested in a narrower range than instantly claimed. While claims 1 and 28 have been amended to include amounts of each component, in some cases the claimed ranges are 2-3x that of the working embodiments, from which Applicants’ are basing their unexpected results. The skilled artisan would reasonably recognize that varying the amount of active agent, solvents, water, and surfactant, would have an effect on formulation stability, where formulation stability depends, at least in part, on interaction between the individual components in their respective ratios and amounts. In support, Long teaches that the particular combination of components and their amounts affect formulation stability of glufosinate containing compositions (¶¶ 24, 37). Likewise, it was known from Baur that cosolvents affect cold/heat stability of glufosinate containing formulations (¶ 82). In addition, every working examples comprises the specific MEA-LES as the claimed component D, which is defined in Table M.1 as
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, which appears to comprise monoethanolamine as the cation and C10-C16 fatty alcohol, which applicants have asserted in the response dated 01/09/2026 that the X value is approximately 3. The skilled artisan would reasonably recognize that varying the number of ethylene oxide repeat units, as well as the different M+ cations instantly claimed, would have an effect on formulation stability, such as by changing the hydrophilic/lipophilic balance and interfacial behavior of the surfactants, different solution and active agent interactions, etc. Accordingly, it does not appear that the results shown in Tables M.1 and M.2 can be reasonably extended to include the full scope of the instant claims. Applicants assert where Long and Baur teach salts of glufosinate and sodium salts of alkylether sulfates in their examples, the specific counterion would not be expected to have a significant effect on phase stability. However, a simple recitation of alternative embodiments is not sufficient evidence to suggest that stability would be the same across the full scope of the instant claims, and attorney argument does not replace evidence where evidence is necessary. See MPEP 2145(I).
Second, respectfully, this argument is not persuasive. While Long teaches an alkyl polyglucoside, Long ‘469 is newly cited above to provide motivation to formulate the composition made obvious above that is free of an alkyl polyglucoside and nonionic surfactant, for the same reasons discussed above. Regarding Baur, the examiner agrees that Baur appears to recite n-alkylglucamide as a required component and appears to suggest that the combination of glucamides and alkyl ether sulfates, in their particular mixtures, show synergistic effect. Accordingly, it does not appear that the skilled artisan would have been motivated to remove n-alkylglucamide (a nonionic surfactant) from Baur, which is taught to have synergistic effects with the alkyl ether sulfates.
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 1-14, 16, 17, and 21-28, are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of copending Application No. 18/033,418 (reference application), hereinafter ‘418, in view of Long (US 20110039702 A1). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of ‘418 disclose an aqueous agrochemical formulation comprising at least one water-soluble pesticide selected from glufosinate or a salt thereof. The composition further comprises at least one organosulfate surfactant of formula (I) (appears to be substantially the same compound instantly claimed). The compositions may further comprise organic solvents.
The claims of ‘418 do not disclose the combination of solvents B.1, B.2, and B.2, nor the amounts of the components as instantly claimed.
It would have been obvious to further include known solvents, such as those taught by Long for the same reasons discussed above and of record.
It would have been obvious to include known amounts of components suitable for aqueous herbicidal compositions comprising glufosinate and a surfactant, such as those taught by Long for the same reasons above and of record.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
The following are also rejected in view of Long (US 20110039702 A1) for the same reasons:
Copending application no. 17/793,755, while disclosing an agrochemical composition comprising formula (I) as instantly claimed, wherein the active ingredient is glufosinate or (L)-glufosinate, or a salt thereof, and is present in an amount of more than 25 wt%, and more than 10 wt% of an organic solvent, the claims do not disclose the combination of solvents B.1, B.2, and B.3, as instantly claimed, nor their amounts. It would have been obvious to modify the claims of ‘755 by including known solvents and amounts of components that were known to be suitable for aqueous herbicidal compositions comprising glufosinate and a surfactant, as taught by Long for the same reasons above and of record.
Response to Arguments
Applicants assert the double patenting rejection should be withdrawn in view of Applicants’ unexpected results.
Respectfully, this argument is not persuasive for the same reasons discussed above. Accordingly, the nonstatutory double patenting stands rejected for the same reasons above and of record.
Claims 1-14, 16, 17, and 21-28, are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of copending Application No. 18/033,418 (reference application), hereinafter ‘418, in view of over Baur et al (US 20200367504 A1, hereinafter “Baur”). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of ‘418 disclose an aqueous agrochemical formulation comprising at least one water-soluble pesticide selected from glufosinate or a salt thereof. The composition further comprises at least one organosulfate surfactant of formula (I) (appears to be substantially the same compound instantly claimed). The compositions may further comprise organic solvents.
The claims of ‘418 do not disclose the combination of solvents B.1, B.2, and B.2, nor the amounts of the components as instantly claimed.
It would have been obvious to further include known solvents, such as those taught by Baur for the same reasons discussed above and of record.
It would have been obvious to include known amounts of components suitable for aqueous herbicidal compositions comprising glufosinate and a surfactant, such as those taught by Baur for the same reasons above and of record.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
The following are also rejected in view of Baur for the same reasons:
Copending application no. 17/793,755, while disclosing an agrochemical composition comprising formula (I) as instantly claimed, wherein the active ingredient is glufosinate or (L)-glufosinate, or a salt thereof, and is present in an amount of more than 25 wt%, and more than 10 wt% of an organic solvent, the claims do not disclose the combination of solvents B.1, B.2, and B.3, as instantly claimed, nor their amounts. It would have been obvious to modify the claims of ‘755 by including known solvents and amounts of components that were known to be suitable for aqueous herbicidal compositions comprising glufosinate and a surfactant, as taught by Baur for the same reasons above and of record.
Response to Arguments
Applicants assert the double patenting rejection should be withdrawn in view of Applicants’ unexpected results.
Respectfully, this argument is not persuasive for the same reasons discussed above. Accordingly, the nonstatutory double patenting stands rejected for the same reasons above and of record.
Claims 1-14, 16, 17, and 21-28, are rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of U.S. Patent No. 11375713 B2, hereinafter ‘713, in view of Long (US 20110039702 A1), McKnight et al (US 20130123104 A1, hereinafter “McKnight”) and Cosmetic Ingredient Review (MEA, CIR Expert Panel Meeting, 2011, pp. 1-239, hereinafter “CIR”). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of ‘713 disclose a single phase liquid herbicidal composition comprising 20-35 wt% glufosinate or a salt thereof, a lauryl ether sulfate or a salt thereof, an organic solvent, water, and a surfactant. The organic solvent is selected from methanol, ethanol, propylene glycol, dipropylene glycol, glycerol, and combinations thereof. The organic solvent is present at 1-20 wt%. The weight ratio of glufosinate to lauryl ether sulfate is 1:0.2 to 1:5.0.
The claims of ‘713 do not disclose a single embodiment comprising solvents B.1-B.3 together, nor the particular D component as instantly claimed.
Long, McKnight, and CIR are discussed above.
It would have been obvious to modify the compositions of ‘713 by substituting monoethanolamine laureth sulfate for the lauryl ether sulfate salts of ‘713, where monoethanolamine laureth sulfate was a known surfactant suitable for agricultural pesticide compositions comprising glufosinate, as taught by McKnight.
Further, it would have been obvious to formulate the monoethanolamine laureth sulfate surfactant wherein n is equal to 3, as taught by Long and CIR, thereby meeting the elected species.
It would have been obvious to formulate the compositions of ‘713 with glufosinate, and combinations of solvents comprising those of B.1-B.3, as disclosed by the claims of ‘713.
It would have been obvious to include known amounts of components suitable for aqueous herbicidal compositions comprising glufosinate and a surfactant, such as those disclosed by the claims of ‘713 and taught by Long for the same reasons above and of record. 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).
Double Patenting – Withdrawn
The nonstatutory double patenting rejections over the claims of copending application no. 17/793,475 is withdrawn, as the case is now abandoned.
Conclusion
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/JOSHUA A ATKINSON/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
