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 without traverse in the reply filed on 6/12/26 is acknowledged however examination of eth instant application revealed that restriction is not necessary and the requirement of 4/15/26 is hereby withdrawn.
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.
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 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2017151573 (573) and WO 2005051921 (921).
573 teaches a method for making L-glufosinate through enzymatic deracemization of D/L-glufosinate, (the racemic glufosinate used as substrate may be in the form of ammonium salt (p 15, par 2)) by reacting D-glufosinate with a D-amino acid oxidase (DAAO) enzyme to form 2-oxo-4-(hydroxy(methyl)phosphinoyl)butyric acid (PPO); and aminating the PPO to L-glufosinate by a transaminase (TA) enzyme, using an amine group from one or more amine donors. 573 teaches that at least 70% of the D-glufosinate is converted to L-glufosinate, and wherein (see claim 2 and example 11) the amine donor may be selected from sec-butylamine or isopropylamine. 573 teaches a process wherein the produced L-glufosinate produced would be in the form of the ammonium salt (p 15, par 2). 573 further teaches that the ammonium salt is a preferred form to be used in formulations (see claims 28-35). 573 also discloses (see pages 16-17) that additional steps to further purify the L-glufosinate can be added such as
ion exchange, extraction, salt formation, crystallization and filtration. 573 further teaches that salts of L-glufosinate can be transformed into forms of glufosinate suitable for formulation by standard methods known to those skilled in the art and that
purification may be achieved by first crystallizing one or more impurities,
removing the impurities by filtration and then further purifying L-glufosinate from
the resulting filtrate by forming a salt.
573 does not disclose using the specific alkylammonium salt (such as isopropylammonium salt) of L-glufosinate, however it would have been obvious to
select an akylammonium salt as the L-glufosinate salt in the process of 573 because 921 teaches (page 9, line 20-25) a process for converting an isopropylammonium salt of an organic acid (rosuvastatin) into the corresponding calcium salt by reaction with an aqueous basic solution of sodium or potassium hydroxide (about 8%), followed by reaction with a source of calcium such as calcium chloride or calcium oxide. According to the experimental example (example 5; page 17, line 1-14), it is implicit that in this conversion method isopropylamine is removed by evaporation (along with the solvent) after the step of reacting the isopropylammonium salt with the aqueous base. As such 912 teaches that alkylammonium salts would be useful in a process like that of 573 for
for converting a L-glufosinate alkylammonium salt into the calcium salt.
Applicant is directed to pages 12-13 of KSR v Teleflex (500 US 398 2007) “ … the Court has held that a “patent for a combination which only unites old elements with no change in their respective functions . . . obviously withdraws what is already known into the field of its monopoly and diminishes the resources available to skillful men.” Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U. S. 147, 152 (1950). This is a principal reason for declining to allow patents for what is obvious. The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” “When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one(emphasis added). If a person of ordinary skill can implement a predictable variation, §103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.”
"[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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); >see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.");< ** In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.). For more recent cases applying this principle, see Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997).
Accordingly, the claimed invention was prima facie obvious to one of ordinary
skill in the art at the time the invention was filed especially in the absence of evidence
to the contrary.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BLAINE LANKFORD whose telephone number is (571)272-0917. The examiner can normally be reached M-Th 8-6:30.
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BLAINE LANKFORD
Examiner
Art Unit 1657
/BLAINE LANKFORD/Primary Examiner, Art Unit 1657
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