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 18 May 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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.
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 18 May 2026 has been entered.
Claim Objections
Claim 5 is objected to because of the following informalities: immediately following “the” in lines 1 and 2 of the claim there should be recited --- one or more ---. Appropriate correction is required.
Claim 11 is objected to because of the following informalities: immediately following “the” in line 1 of the claim there should be recited --- one or more ---. Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 16 and 17 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.
Claim 16 recites components “pinoxaden” and “an aromatic hydrocarbon solvent”. However, it is not immediately clear from the recitation whether pinoxaden is considered an additional component or as the 3-alkoxy-4-aryl-5-oxopyrazoline compound (i.e. component (a)); and it is not clear whether the recitation of an aromatic hydrocarbon solvent is considered an additional component or as the one or more organic solvents (i.e. component (c)). Clarification is requested.
Similarly, claim 17 recites, in addition to “pinoxaden” and “an aromatic hydrocarbon solvent” discussed above, “cloquintocet-mexyl” and “an emulsifier”. It is not immediately clear from the recitation whether cloquintocet-mexyl is considered an additional component or as the safener (i.e. component (b)); and it is not clear whether the recitation of an emulsifier is considered an additional component or as the emulsifier (i.e. component (d)). Clarification is requested.
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 emulsion or an emulsifiable concentrate, wherein said pesticide exhibits superior performance against a targeted pest (abs, [0028]). 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]).
As noted by [0002] of the instant Specification, pinoxaden is an instantly claimed 3-alkoxy-4-aryl-5-oxopyrazoline compound, and cloquintocet-mexyl is an instantly claimed safener. As noted by [0039], caprylic acid and capric acid triglyceride is a C8 – C10 medium chain triglyceride suitable as a C6 – C14 triglyceride.
Accordingly, Essig discloses an emulsifiable concentrate comprising pinoxaden and cloquintocet-mexyl; 80-90% by weight of solvents comprising aromatic hydrocarbons and capric/caprylic triglyceride; and 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 C6-C14 triglycerides, it would have been obvious to one of ordinary skill in the art to have selected an amount of aromatic hydrocarbon and an amount of capric/caprylic triglyceride, such that the total amount of aromatic hydrocarbon and capric/caprylic triglyceride is within the range of 80-90% by weight. The claimed ranges (i.e. 10-35 wt. % or 15-30 wt. % of one or more C6-C14 triglycerides; or 30-90 wt. %, 40-80 wt. %, or 50-70 wt. % of one or more organic solvent or aromatic hydrocarbon solvent, respectively) would have been obvious from selecting from this range. Moreover, in any case, the selection of appropriate weight percentages would appear to require no more than routine testing on the part of the skilled artisan, and so alternatively it would have been obvious to determine workable ranges to arrive at the claimed amounts. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." See MPEP § 2144.05(II)(A).
Regarding claims 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). Moreover, in any case, the selection of appropriate weight percentages would appear to require no more than routine testing on the part of the skilled artisan, and so alternatively it would have been obvious to determine workable ranges to arrive at the claimed amounts. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." See MPEP § 2144.05(II)(A).
Regarding claims 15-17 reciting various amounts of a 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). Moreover, in any case, the selection of appropriate weight percentages would appear to require no more than routine testing on the part of the skilled artisan, and so alternatively it would have been obvious to determine workable ranges to arrive at the claimed amounts. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." See MPEP § 2144.05(II)(A).
Regarding claims 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). Moreover, in any case, the selection of appropriate weight percentages would appear to require no more than routine testing on the part of the skilled artisan, and so alternatively it would have been obvious to determine workable ranges to arrive at the claimed amounts. "[W]here 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 11, as noted by p.5, ¶3 of the instant Specification, SOLVESSOTM solvent 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.
Regarding claim 18, as discussed above, Essig discloses wherein the composition may be an emulsion.
Response to Arguments
Applicant mainly asserts on pp. 8-9 of the Remarks submitted 18 May 2026 that Essig does not teach using capric/caprylic triglyceride as an adjuvant in the claimed amount. Essig identifies capric/caprylic triglyceride as a solvent option among other options. Essig also does not provide any criteria for selecting capric/caprylic triglyceride as an adjuvant or for determining an adjuvant amount corresponding to the claimed 10 to 35 wt.% range. Further, Essig does not teach how any total solvent amount would be allocated among different solvent components, therefore one of ordinary skill in the art would not view or have a reasonable expectation of success in selecting capric/caprylic triglyceride from Essig’s broad solvent list or optimizing in the same manner, e.g., used in an amount of 10-35 wt. % based on the agricultural concentrate, while still achieving the same formulation purpose taught by Essig.
The Examiner does not find Applicant’s assertion to be persuasive. Although Essig does not teach using capric/caprylic triglyceride as an adjuvant, rationale different from Applicant’s is permissible. It is not necessary for the prior art to suggest the combination to achieve the same advantage or result discovered by Applicant. See MPEP 2144(IV). Thus, it is not necessary for Essig to disclose using capric/caprylic triglyceride for the same reason as Applicant, which is as an adjuvant.
Moreover, 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. In addition, routine experimentation is permitted, and the determination of appropriate percentages of known components for their known function would seem to reasonably constitute no more than routine experimentation. In this regard, note that the heading for MPEP § 2144.05 IIA reads: “Optimization within Prior Art Conditions or Through Routine Experimentation”. The latter does not require identification of a “result effective variable”, which is reinforced by the statement later in the section explaining that courts have cautioned that “a mere carrying forward of an original patented conception involving only a change in form, proportion or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes in kind may produce better results than prior inventions.”
Finally, Applicant has asserted that there’s no reasonable expectation of success in selecting capric/caprylic triglyceride while still achieving the same formulation purposes taught by Essig, but has not pointed to any objective evidence to support this assertion. Therefore, such assertion is an opinion with conclusory statements. Mere conclusory statements, unsupported by objective factual evidence, are entitled to little weight when the PTO questions the efficacy of those statements. See MPEP 716.01(c). Moreover, because Essig discloses a composition wherein elements of the instant claims may be included, one of ordinary skill in the art would have had a reasonable expectation of success in incorporating these elements. As supported by MPEP § 2144.06(I), combining known ingredients for their known functions is generally obvious. Furthermore, as supported by MPEP § 2143.02, obviousness does not require absolute predictability, and conclusive proof of efficacy is not required to show a reasonable expectation of success. As such, the Applicant’s argument is unpersuasive.
Claims 1-18 are rejected under 35 U.S.C. 103 as being unpatentable over Mühlebach et al. (US 6,410,480, 06/25/2002) (hereinafter Mühlebach) in view of Essig et al. (US 2020/0236925 A1, 07/30/2020) (hereinafter Essig).
Mühlebach discloses compositions comprising an herbicidally effective amount of a compound of formula I:
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wherein R1 and R3 are each C2 alkyl; R2 includes C1 alkyl; R4 and R5 together may be “Z2” (—C—R14(R15)—C—R16(R17)—O—C—R18(R19)—C—R20(R21)—; R14-21 are each H; G may be —C(X1)—R30; X1 includes O; R30 includes C4 alkyl as tert-butyl (col. 1, line 20 – col. 2, line 52), such as compound 1.008 (i.e. pinoxaden) (Table 1). The compound of formula (I) may be mixed with safeners of formula (X), including compound 9.01 (i.e. cloquintocet-mexyl) (Table 9). The compositions may be formulated with auxiliaries as emulsifiable concentrates or dilute emulsions (col. 13, line 67 – col. 14, line 2). The auxiliaries include solvents and surfactants, such as: nonionic surfactants including castor oil polyglycol ethers (i.e. castor oil ethoxylates) (col. 40, lines 59-61); and anionic surfactants including alkylaryl sulfonates (i.e. alkylbenzene sulfonates) (col. 38 lines 64-67). The herbicidal formulations may contain 0.1-99% by weight of herbicide, 1 to 99% by weight of solid or liquid formulation auxiliary, and 0 to 25% by weight of surfactant (col. 16, lines 8-12).
Mühlebach differs from the instant claim insofar as not explicitly disclosing wherein the solvent comprises a claimed triglyceride.
However, the disclosure of Essig is discussed in detail above, including wherein 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).
Accordingly, it would have been obvious to one of ordinary skill in the art to have included capric/caprylic triglyceride in the composition of Mühlebach since it is a known and effective solvent suitable for herbicidal compositions as taught by Essig.
Examiner’s Note
The Examiner notes that while claim 17 appears to recite more specific compositions containing particular ingredients in particular percentages, the data contained in Tables 3 and 6 of the instant Specification appear to suggest that, in addition to the components recited in claim 17, a combination of specific amounts and specific species of anionic surfactants and nonionic surfactants, instead of any amount combination of any “alkylbenzene sulfonate;” and any “ethoxylated fatty alcohol, fatty acid, or castor oils” or any “EO/PO block copolymers” generally, would contribute to the composition’s efficacy and/or stability (e.g., also see Example 3). It is thus unclear to the Examiner how the recited limitations of claim 17 would be considered to be “commensurate in scope” with the data of Tables 3 and 5-6, even if the unexpectedness of results were to have been established.
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
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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/LUCY M TIEN/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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