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 11 December 2025, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim 1-3, 6-11 and 18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Rastgoo et al. (“Vegetable oil characteristics enhance the phytotoxicity of pinoxaden and haloxyfop-R-methyl on littleseed canarygrass Phalaris minor Retz.”, 08/19/2020, IDS reference) (hereinafter Rastgoo), as evidenced by Sonwai et al. (“Characterization of Coconut Oil Fractions Obtained from Solvent Fractionation Using Acetone”, 04/21/2017, IDS reference) (hereinafter Sonwai) and Syngenta (“Axial,” 08/21/2019).
Rastgoo discloses emulsions prepared from herbicides including Axial® EC (i.e. emulsifiable concentrate) (comprising pinoxaden, cloquintocet-mexyl, alcohol, aromatic hydrocarbons and emulsifiers), and vegetable oils including coconut oil, increase the efficacy of the herbicides (p.713, col. 1; p.714, col. 1). The vegetable oils were prepared by dissolving in 5% alkyl aryl polyglycol ether (C8H16C6H4 (C2H4O)10 H) (i.e. octylphenol ethoxylate) (a nonionic emulsifier) (p.713, col. 1).
Regarding claim 11, as noted by p.5, ¶3 of the instant Specification, SOLVESSOTM solvents is an aromatic hydrocarbon solvent.
Rastgoo differs from the instant claims insofar as not explicitly disclosing wherein coconut oil comprises one or more C6-C-14 triglycerides, or wherein the Axial® comprises 5-50 wt. % of adjuvant.
However, as evidenced by Sonwai, an exemplary coconut oil (CNO) comprises about 80% C6-C14 triglycerides (e.g., CCLa, CLaLa, LaLaLa, LaLaM, LaMM, etc.) (p. 955, Table 3).
As evidenced by Syngenta, Axial® herbicide contains ≥25 - <30% heavy aromatic naphtha; ≥3 - <10% w/w pinoxaden; ≥1 - <2.5% w/w cloquintocet-mexyl; ≥10 - <20% 2-methylpentane-2,4-diol; and ≥0.25 - <1% naphthalene (p. 3/24).
Accordingly, Rastgoo discloses agricultural concentrates comprising pinoxaden, adjuvants including ≥ 10 - <20% w/w of 2-methylpentane-2,4-diol (i.e. an emulsifier) and coconut oil comprising C6-C14 triglycerides, and emulsions prepared from said concentrates, which would provide compositions as claimed instantly.
Regarding claim 11, as noted by p.5, ¶3 of the instant Specification, SOLVESSOTM solvents is an aromatic hydrocarbon solvent having a flash point greater than 80 °C.
Response to Arguments
Applicant asserts Sonwai merely concerns the composition of coconut oil fractions but is completely silent on the composition of palm oil, which has a completely different chemical composition compared with coconut oil and will not provide the minimum amount of adjuvant defined in amended claim 1. Also, even when considering coconut oil as actually described in Rastgoo in light of the exemplary composition provided in Sonwai, the compositions tested in Rastgoo will still not comprise at least 5 wt.% of the adjuvant when being combined with the herbicidal active, as Rastgoo teaches that only 0.3 % (v/v) of the vegetable oil are to be used, i.e. a much lower amount.
The Examiner does not find the assertion persuasive. Amended instant claim 1 does not limit adjuvant to C6-C14 triglycerides. As evidenced by Curran and Lingenfelter (“Adjuvants for enhancing herbicide performance,” 01/01/1999) (hereinafter Curran), an adjuvant is any substance in a herbicide formulation to improve herbicidal activity or application characteristics (p. 1, left col.). Accordingly, given the broadest reasonable interpretation, the composition of Rastgoo, comprising adjuvants including ≥ 10 - <20% w/w of 2-methylpentane-2,4-diol (i.e. an emulsifier), and coconut oil comprising one or more C6-C14 triglycerides, reasonably meet the limitations of “5 – 50 wt. % of adjuvant” and “adjuvant comprising one or more C6-C14 triglycerides” as instantly claimed. The Examiner further notes that the features upon which applicant relies (i.e., palm oil) are not recited in the rejected claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). As such, the Applicant’s argument is unpersuasive.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-18 are rejected under 35 U.S.C. 103 as being unpatentable over Essig et al. (US 2020/0236925 A1, 07/30/2020) (hereinafter Essig).
Essig discloses a composition comprising one or more actives including herbicides and insecticides ([0039]) in amounts of 0.1-15% by weight ([0055]) that is solubilized in a water-immiscible solvent to form an oil in water emulsion or an emulsifiable concentrate, wherein said pesticide exhibits superior performance against a targeted pest (abs). The solvent includes one or more aromatic hydrocarbons such as SOLVESSOTM solvents and triglyceride-based esters such as capric/caprylic triglyceride ([0041]). Exemplary solvent amounts include 40-50% or 80-90% by weight (Table 3, Table 8). Actives include herbicides pinoxaden and cloquintocet-mexyl ([0063]). The composition further comprises 0.01-25% by weight of emulsifiers ([0042]) including a mixture of nonionic and ionic (e.g. anionic), and include alkylbenzenesulfonate ([0044]) and EO/PO block copolymers ([0046]).
Regarding claim 11, as noted by p.5, ¶3 of the instant Specification, SOLVESSOTM solvents is an aromatic hydrocarbon solvent.
Accordingly, Essig discloses an emulsifiable concentrate or an emulsion, comprising 0.01-25% by weight of pinoxaden (i.e. instantly claimed 3-alkoxy-4-aryl-5-oxopyrazoline compound) and cloquintocet-mexyl (i.e. instantly claimed safener); solvents including SOLVESSOTM aromatic hydrocarbons and capric/caprylic triglyceride (i.e. instantly claimed adjuvant); and 0.01-25% by weight of emulsifiers including nonionic EO/PO block copolymer and anionic alkylbenzenesulfonate, which would provide a composition as claimed instantly.
The prior art is not anticipatory insofar as this combination must be selected from various lists/locations in the reference. It would have been obvious, however, to make the combination since all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. See MPEP § 2143 (I)(A).
Regarding claims 1 and 15-17 reciting various amounts of one or more organic solvent or aromatic hydrocarbon solvent and adjuvant, it would have been obvious to one of ordinary skill in the art to have selected an amount of aromatic hydrocarbon solvent and an amount of capric/caprylic triglyceride, such that the total amount of aromatic hydrocarbon solvent and capric/caprylic triglyceride is within the range of 80-90% by weight. The claimed ranges (i.e. 30-90 wt. %, 40-80 wt. %, or 50-70 wt. % of one or more organic solvent or aromatic hydrocarbon solvent, respectively; and 5-50 wt. %, or 10-35 wt. % of adjuvant, respectively) would have been obvious from selecting from this range. Additionally, 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(A).
Regarding claims 15-17 reciting various amounts of safener or cloquintocet-mexyl, the claimed ranges (i.e. 0.1-4 wt. %, 0.2-2 wt. %, or 1 to 1.5 wt. %, respectively) would have been obvious to one of ordinary skill in the art since the overlap with the ranges of the prior art (i.e. 0.01-25% by weight). 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 15-17 reciting various amounts of emulsifier, the claimed ranges (i.e. 0.5-20 wt. %, 4-10 wt. %, or 1-7 wt. %, respectively) would have been obvious to one of ordinary skill in the art since the overlap with the ranges of the prior art (i.e. 0.01-25% by weight). 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, 15, 16, and 17 reciting various amounts of the 3-alkoxy-4-aryl-5-oxopyrazoline compound or pinoxaden, the claimed ranges (i.e. 3-8 wt. %, 1-20 wt. %, 2-15 wt. %, or 4-6 wt. %, respectively) would have been obvious to one of ordinary skill in the art since the overlap with the ranges of the prior art (i.e. 0.01-25% by weight). 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 11, as noted by p.5, ¶3 of the instant Specification, SOLVESSOTM solvents is an aromatic hydrocarbon solvent having a flash point greater than 80 °C.
Regarding claims 13-14 , Essig further discloses wherein an herbicide may include 2,4-DB ([0063]).
As noted by p.9, line 16 of the instant Specification, 2,4-DB is an aryl carboxylic acid herbicide.
Response to Arguments
Applicant mainly asserts that Essig's disclosure does not particularly direct one skilled in the art to Pinoxaden or other elements of the current claims. In the more than 1000 herbicidal active ingredients listed in [0063], while pinoxaden is mentioned, it is never exemplified as 100% of Essig's exemplified pesticide formulation examples include indaziflam (Tables 3 & 8). Applicant further asserts that it is NOT obvious for one skilled in the art that the selection of any combination of the herbicides with aromatic solvent, combined with any of the more than 25 other solvents listed in [0040] and [0041], would result in a stable concentrate for 2 weeks at 54°C and a water diluted composition that resist phase separation over a 24h period. Finally, among the more than 25 solvents listed in [0040] and [0041], N,N-Dimethyl decanamide and canola oil methyl ester are both listed as an option by Essig. However, Applicant submits that it was not obvious for one skilled in the art, to assemble a combination of ingredients listed by Essig that would provide a stable concentrate with low degradation of herbicidal active ingredient upon storage as in the current claims.
The Examiner does not find the Applicant’s argument persuasive. As stated in MPEP § 2123, a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Therefore the teachings of Essig are not limited to its exemplified formulations comprising indaziflam. As discussed above, the herbicides are simply being combined with the expectation of obtaining a third composition which is also a herbicide. There would not seem to be a particular number limit on the possible combinations in this instance, so long as the individual members are functioning as expected (as herbicides). See additionally, MPEP § 716.02(a), citing Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (where the prior art patent disclosed genus of 1,200 effective combination of compounds, including the claimed combination, that "disclos[ing] a multitude of effective combinations does not render any particular formulation less obvious"). In this instant case, the fact that Essig discloses alternative actives in addition to pinoxaden or alternative solvents in addition to Solvesso® does not render pinoxaden less obvious as a choice of active, or Solvesso® (i.e. aromatic hydrocarbon) less obvious as a choice of solvent. Therefore it would have been obvious to one of ordinary skill in the art to have included such active and such solvent in the composition since Essig does not disclose wherein pinoxaden or Solvesso® cannot be used as an active or solvent, respectively. See also MPEP 2131.02(II), where the Board held that the comprehensiveness of the listing did not negate the fact that a claimed compound was specifically taught. The Board compared the facts to the situation in which a compound was found in the Merck Index, saying that "the tenth edition of the Merck Index lists ten thousand compounds. In our view, each and every one of those compounds is ‘described’ as that term is used in that publication."
Moreover, the Examiner notes that the features upon which Applicant relies (i.e., stability conditions) are not recited in the rejected claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). As such, the Applicant’s argument is unpersuasive.
Applicant further asserts one skilled in the art would not conclude that an indaziflam-based composition would provide any direction to one skilled in the art to substitute indaziflam with pinoxaden because of the different modes of action and application timing (e.g., pre-emergence vs emerged weeds). Applicant argues because Essig’s disclosure includes herbicides with broad range of classes and chemistries and phys-chem properties, and that other herbicides are closer in properties to indaziflam than pinoxaden, there would be no reason for selecting pinoxaden rather than them.
The Examiner does not find Applicant’s assertion to be persuasive. Essig is not limited to indaziflam-based compositions. As discussed above, a prior art reference is evaluated for all that it reasonably suggests and is not limited to preferred embodiments and working examples. For example, para. [0075] of Essig discloses pre-emergent, post-emergent applications steps or combinations thereof. Thus it would reasonably appear that Essig teaches or at least suggests compositions comprising post-emergence actives. In this instant case, Applicant agrees that Essig explicitly states that one suitable active is pinoxaden. As such, it would have been obvious to select that from among the various actives taught and Applicant’s argument is unpersuasive.
Applicant asserts the Specification presents unexpected results to overcome the obviousness rejection. Both N,N- Dimethyl decanamide (mentioned as Hallcomid® M10 in the '753 Publication) and Canola oil methyl ester (mentioned as Steposol® ROE-W in the '753 Publication) are not as efficient as C6-C14 triglycerides such as STEPAN® 108 in order to prevent degradation of Pinoxaden herbicide in the concentrate holding 34% of adjuvant (see Table 3 in [0057] of the '753 Publication). Further, as demonstrated in Tables 5 and 6 of the '753 Publication, STEPAN 108® (C8- C10 triglyceride) provides a more stable concentrate upon water dilution over the use of Hallcomid® M-10 (N,N-Dimethyl decanamide).
The Examiner is not persuaded by these arguments.
The rationale for obviousness has been detailed in the rejection supra, and the Examiner’s rationale need not be the same as Applicant’s to establish obviousness.
Regarding allegations of unexpected results, Applicant has the burden of explaining the data in any declaration they proffer as evidence of non-obviousness. See MPEP § 716.02(b)(II). Applicant has explained that various statements referenced in the specification support their position, but these cannot take the place of evidence in the record. See MPEP § 716.01(c)(II). In this instant case, Applicant alleges unexpected results in comparison to N,N-dimethyl decanamide and canola oil methyl ester. However, the Examiner has not relied on N,N-dimethyl decanamide or canola oil methyl ester to establish obviousness.
Moreover, any differences between the claimed invention and the prior art may be expected to result in some difference in properties. The issue is whether the properties differ to such an extent that the difference is really unexpected. The burden is on applicant to establish that the results are in fact really unexpected and of statistical and practical significance. Ex parte Gelles, 22 USPQ2d 1318 (Bd. Pat. App. & Inter. 1992). See also MPEP § 716.02. In this instant case, even if the Examiner had, purely arguendo, relied on, for example, N,N-dimethyl decanamide (i.e. Adjuvant ID “B”), to establish obviousness, it is still unclear to the Examiner how formulation “B,” with 35 g/L of pinoxaden after the stability period, and formulation “C,” (i.e. instantly claimed adjuvant) with 42 g/L of pinoxaden after the stability period, demonstrate unexpectedness of results when compared with each other since the bottom of Table 3 also notes that results are provided +/- about 10% (e.g., formulation “B” would range 31.5-38.5 g/L and formulation “C” would range 37.8-46.2 g/L). As such, Applicant’s argument is unpersuasive.
Citation of Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Stock et al. (US 2011/0098178 A1, 04/28/2011), directed to a liquid herbicidal composition containing pinoxaden, cloquintocet-mexyl, heavy aromatic hydrocarbons, block copolymers of ethylene oxide and propylene oxide, and dodecylbenzenesulfonate.
Vaughan (AU 2019/100546 A4, 06/27/2019, IDS reference), directed toward an emulsifiable concentrate comprising pinoxaden, cloquintocet-mexyl, aromatic hydrocarbons, castor oil ethoxylates, and calcium dodecyl benzene sulfonate.
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 LUCY TIEN whose telephone number is (571)272-8267. The examiner can normally be reached Monday - Thursday 8:30 AM - 6:30 PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, SAHANA KAUP can be reached at (571) 272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LUCY M TIEN/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612