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 .
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-17, and the species of formula (I) of the monoethanolammonium cation and monoethanolammonium laurylether sulfate (MEA-LES), in the reply filed on 01/09/2026 is acknowledged. The traversal is on the ground(s) that unity of invention is evidenced by the International Search Report and that the examiner has not provided proper reasons why each group lacks unity with each other group, specifically describing the unique species technical feature in each group. Applicants assert the Office Action fails to indicate whether Groups I-III are classified in different classes or subclasses, but even if differently classified, the inventions are not independent because the composition in claims 1-17 and the method set forth in claim 19 are so closely related that a search for applicants’ method claim necessarily would encompass a search for applicants’ herbicidal composition claims. Applicants argue that even if unity of invention is lacking, no evidence exists that a serous search burden exists.
Without agreeing with applicants’ assertions, the examiner notes that Baur (WO 2019149514) is no longer recited in the following prior art rejection. Further, applicants’ arguments are not found to be persuasive because the shared technical feature of Group I, the aqueous liquid herbicidal composition, does not make a contribution over the prior art in view of Long, McKnight, and CIR, for the same reasons discussed below. Indication of the relationships between the groups, providing separate classifications, and evidence of a serous search burden are not requirements under 371 practice.
The requirement is still deemed proper.
Claims 15, 18, and 19, are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention and species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 01/09/2026. The examiner notes that the species may be expanded upon the finding and indication of allowable subject matter.
Claim Status
Claims 1-19 are pending.
Claims 15, 18, and 19, are withdrawn.
Claim Interpretation
The examiner best understands “contains,” as recited in claim 1, pg 3, ln 5, to have the same meaning as “comprising.” See MPEP 2111.03(I).
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because the abstract is 278 words. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
The disclosure is also objected to because it contains an embedded hyperlink and/or other form of browser-executable code. Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01.
In the present instance, embedded hyperlinks are present on pages 18 (2 instances) and 30 (1 instance) of the instant specification.
Claim Objections
Claim 1 is objected to because of the following informalities: claim 1, pg 3, ln 3, “and” should be removed. Additionally, claim 1, pg 3, ln 4, the period should be replaced by “; and”. Finally, “where” should be replaced by “wherein” on pg 3, ln 5. Appropriate correction is required.
Claim 6 is objected to because of the following informalities: claim 6 recites “propylene glycol,” and claim 1 recites “1,2-propylene glycol.” For purposes of claim consistency, “propylene glycol” should read “1,2-propylene glycol,” as recited in claim 1. Appropriate correction is required.
Claim 8 is objected to because of the following informalities: claim 8 recites “13 to 36 % weight %,” and should read “13 to 36 weight %.”
Claim 8 is also missing “and a” following “a salt thereof,” in ln 4.
Appropriate correction is required.
Claim 9 is objected to because of the following informalities: claim 9 recites “wherein the index x in compound…,” and should recite “wherein x in the compound…,” in order to be consisted with the terminology used in claim 1, as “x” is not referred to as “index x.” Appropriate correction is required.
Claim 10 is objected to because of the following informalities: following “formula (I)” in ln 2, a comma is missing. Appropriate correction is required.
Claim 12 is objected to because of the following informalities: claim 12, ln 9, following “partially”, the “-“ should be replaced by a comma. Appropriate correction is required.
Claim 14 is objected to because of the following informalities: claim 14, ln 4, a comma is missing following “2-dimethylaminoethanol” and preceding “triethanolamine.” Appropriate correction is required.
Claim 16 is objected to because of the following informalities: claim 16, ln 2, “the” is missing between “wherein” and “composition.”
Claim 16 also recites “(L-)isomers” in ln 4, and should read “(L-)isomer” in order to be consistent with claim 1.
Appropriate correction is required.
Claim 17 is objected to because of the following informalities: claim 17, ln 2, “the” is missing between “wherein” and “composition.” Appropriate correction is required.
Claim Rejections - 35 USC § 112(b) or pre-AIA 2nd ¶
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.
Claim 12 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 12 recites the limitation "R1, R2, R3 and R4 are H or C1-C10 alkyl, which is unsubstituted or substituted…" in ln 5. It is unclear if the unsubstituted or substituted limitation applies to the H, the C1-C10 alkyl, or both. If the H or both, it is unclear how hydrogen can be substituted. For purposes of examination, the unsubstituted or substituted limitations are being interpreted as applying to the C1-C10 alkyl.
Claim 12 also recites “optionally and additionally” in ln 9, and it is unclear how something can be an additional component and an optional component, simultaneously. Accordingly, the examiner suggests removing “optionally and additionally.”
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, and 17, 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, and mixtures thereof (¶ 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.
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 claims 2 and 3, it would have been obvious to include solvents B.1 and B.2 in amounts ranging from 1-20 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 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, 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.
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, and 17, 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.
Copending application no. 17/793,475, while disclosing a liquid herbicidal composition comprising ammonium salt of glufosinate, a compound of formula (I) as instantly claimed, the claims do not disclose the inclusion of solvents B.1, B.2, or B.3, as instantly claimed, nor the amount of components as instantly claimed. It would have been obvious to modify the claims of ‘475 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.
Conclusion
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