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 .
Claims 1-8 are pending in this application.
Claim 6 is objected to under 37 CFR 1.75(c) as being in improper form because a multiple dependent claim should refer to other claims in the alternative only. Claim 6 depends on claims 1 and 4. See MPEP § 608.01(n). Accordingly, the claim 6 has not been further treated on the merits.
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 3-4 and 7-8 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.
(1) Claim 3 recites preferable, more preferable, and most preferable amounts for isoproturon and metsulfuron methyl. This is indefinite claim language because it is unclear whether such preferable, more preferable, or most preferable features are exemplary or somehow limiting. Also, it is unclear under what circumstances it would be preferable, more preferable, or most preferable to use the different amounts of the herbicides.
(2) Claims 4, 7, and 8 recite “selected from a group comprising” (emphasis added) in numerous instances. This is indefinite clam language because a Markush grouping should be a closed group of alternatives. The open list of alternatives makes it unclear what other alternatives are intended to be encompassed by the claims. MPEP 2173.05(h).
(3) In claim 4, the bullet format is problematic because proper language for Markush group is “selected from the group consisting of … and [last member of the group].” The bullet format of claim 4 bypasses the required “and.”
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.
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 1-5 and 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over Kumar et al. (WO 2019/150233; hereinafter, Kumar) in view of Bristow (WO 2015/078243).
Kumar disclose a combination comprising pinoxaden, a first herbicide, and a second herbicide (page 12, lines 13-14), wherein the second herbicide can be a triazinone herbicide such as metribuzin (page 12, lines 22-26). Kumar further discloses synergistic herbicidal combinations of (a) pinoxaden, (b) at least one plant growth regulator, which can be “growth inhibitors” or “growth retardants” (page 2, line 26 to page 3, line 30; page 9, lines 21-27), and (c) at least one triazinone herbicide (page 4, line 11, line 11 to page 5, line 28). ALS inhibitor herbicide can be added (page 15, lines 16-22). Pinoxaden can be present in a range from 0.1 to 99 wt% or 0.2 to 90 wt% (page 15, lines 24-26). In an embodiment wherein the “first herbicide” after pinoxaden is chlorpropham, the admixed ratio is (1-80) : (1-80) : (1-80) of pinoxaden, chlorpropham, and metribuzin (page 15, lines 5-7). In an example with pinoxaden + metribuzin + 2,4-D, the dosage used was 64 g/ha + 725 g/ha + 280 g/ha (Tables 1-2 on pages 22-23). Herbicidal composition can be formulated with agriculturally acceptable adjuvants, carries, diluents, emulsifiers, fillers, anti-foaming agents, etc. in the form of various formulations types such as water-dispersible granules, wettable powders, emulsifiable concentrates, ZC formulations (page 17, lines 11-18). The adjuvants and carriers include nonylphenol ethoxylate, natural primary alcohol (C12-16) ethoxylate, di-sec-butylphenol EO-PO block copolymers, alkyl naphthalene sulfonate salts, dialkyl phosphate ester, dialkyl esters of sulfosuccinate salts and silica (page 17, line 20 to page 19, line 2).
Bristow (WO 2015/078243) discloses that triazinone herbicides such as metribuzin have the surprising ability to reduce the phytotoxic effects of ALS inhibitor herbicides such as metsulfuron on crop plants (paragraphs 6-16; claims 12-14). Weight ratio of triazinone to ALS inhibitor can range from 25:1 to 1:25 (paragraph 20). Test mixture 12 has a weight ratio of 10:1 metribuzin to metsulfuron methyl (page 10). Herbicides can comprise 5-99 wt% of a composition (paragraph 21). See also claims 1-8, 12-19. The composition can contain one or more agriculturally acceptable auxiliaries such as dispersants, wetting agents, antifoaming agents, and fillers (paragraph 22). Wetting agents include sodium dioctyl sulfosuccinate, sodium alkyl naphthalene sulfonate, and antifoam agents include polydimethylsiloxanes (paragraph 28). Formulation type includes water-dispersible granules, water-dispersible powders, water soluble powders, emulsifiable concentrates (paragraphs 34). In an example with metribuzin + metsulfuron methyl , auxiliaries included 2 wt% polyvinyl alcohol, 5 wt% DISPERSOGEN® 1494 (a dispersant; sodium salt of a cresol formaldehyde condensation), and kaolin.
Kumar does not explicitly disclose a synergistic herbicidal composition comprising pinoxaden, metribuzin, metsulfuron methyl, and excipient(s). However, Kumar teaches a synergistic herbicidal composition that comprises pinoxaden and metribuzin, wherein an ALS inhibitor herbicides can be further added. Kumar also teaches that combining herbicides with varied modes of action allows for broader spectrum of control and resistance management (page 1, lines 14-15). The ordinary skilled artisan would have found it obvious to add the ALS inhibitor herbicide metsulfuron methyl to Kumar’s pinoxaden + “first herbicide” + metribuzin combination wherein the metsulfuron methyl is the “first herbicide” or another herbicide (to become the fourth herbicide after pinoxaden, “first herbicide,” and metribuzin). The motivation to do so arises from expectation of broader spectrum of control and the known advantage of increased safety when metribuzin is used with metsulfuron methyl.
The claimed percentages and proportions are suggested by the prior art. Kumar teaches pinoxaden in a range from 0.1 to 99 wt% or 0.2 to 90 wt% (page 15, lines 24-26) and (1-80) : (1-80) : (1-80) weight ratio when pinoxaden is used with two other herbicides. Kumar exemplifies pinoxaden at 64 g/ha and metribuzin at 725 g/ha (Tables 1-2). Bristow teaches weight ratio of triazinone (e.g., metribuzin) to ALS inhibitor (e.g., metsulfuron methyl) can range from 25:1 to 1:25 and exemplifies 10:1 weight ratio of metribuzin to metsulfuron methyl (paragraph 20; Table 2 on page 10). The excipients and their percentages would have been obvious because the same excipients and percentages are taught or suggested by the Kumar and Bristow.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, because every element of the invention and the claimed invention as a whole have been fairly disclosed or suggested by the teachings of the cited references.
Applicant’s specification results have been given due consideration in this regard, but they were deemed insufficient for the following reasons.
Tables 13 and 14 show the asserted synergistic effect of pinoxaden + metribuzin + metsulfuron methyl. However, in order to evaluate synergistic effect, it is critical to establish the expected effect. Applicant relies on the Colby formula that treats each of the three herbicides individually (specification pages 18-19) to estimate at the expected effect “E,” but such Colby calculations are not appropriate here because Kumar already teaches that pinoxaden + metribuzin is synergistic. When pinoxaden + metribuzin is already known to be synergistic, any evaluation of pinoxaden + metribuzin + metsulfuron methyl must take into account the expected synergism of the first two herbicides. Applicant’s specification fails to do this, so Applicant’s evidence cannot be determined as being unexpectedly synergistic in view of the expected synergism when pinoxaden is combined with metribuzin.
For the foregoing reasons, claims 1-5 and 7-8 must be rejected at this time.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to JOHN PAK whose telephone number is (571)272-0620. The Examiner can normally be reached on Monday to Friday from 8:30 AM to 5 PM.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's SPE, Fereydoun Sajjadi, can be reached on (571)272-3311. The fax phone number for the organization where this application or proceeding is assigned is (571)273-8300.
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/JOHN PAK/Primary Examiner, Art Unit 1699