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 .
Claim Objections
Claim 7 is objected to because of the following informalities: the claim recited “tum” which is a clear typo and should instead be “turf”. 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.
Claim 6 is/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 6 depends from claim L. L is not a claim number nor a reference to a previous claim. Thus, it is unclear if applicant’s intend claim 6 to depend from claim 1, or if it is meant to be a placeholder for another preceding claim. For compact prosecution purposes the examiner is interpreting claim 6 to depend from claim 1.
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 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 1-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jennings (US20140200143) in view of UNL (https://water.unl.edu/article/lawns-gardens-landscapes/smart-summer-watering/), MDA (https://web.archive.org/web/20150116183316/https://mda.maryland.gov/resource_conservation/documents/commhrspastgrass07.pdf), and Dürr et al. (Can. J. or Plant Sci., 2005, 85(3), pg. 631-639) and as evidenced by OSU (https://weedguide.cfaes.osu.edu/singlerecord.asp?id=33), CES (https://www.ces.fau.edu/nasa/module-3/why-does-temperature-vary/seasons.php).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Regarding claims 1-5, 15-16, and 18, Jennings teaches a method for negatively impacting (controlling/suppressing) the growth of at least one invasive plant species, including selective control of the claimed invasive plant species, e.g. dandelion (which as evidenced by OSU blooms in early spring in the northern hemisphere/Northern US, mostly April and May (see Biology section)), existing in the same perennial grass plant communities instantly claimed and which preserves/promotes the growth, etc. of the claimed perennial plant community species, e.g. Kentucky bluegrass (which reads on lawns and turf), etc. comprising applying the claimed (i) a phytotoxic micronutrient applied in amounts/concentrations of about 0.5 to about 20 pounds/acre of at least one water soluble micronutrient, specifically boron, which is close to the claimed range of about 25 pounds/acre to about 100 pounds/acre of boron, and teaches wherein the micronutrients (boron) can be applied in combination with macronutrients, specifically nitrogen, e.g. nitrate nitrogen, and wherein other micronutrients or macronutrients can also be applied which are fertilizers and reads on applying an organic or inorganic fertilizer, and obviously because Jennings teaches applying the same amounts of the same phytotoxic micronutrients to the same invasive plants Jennings application(s) is/are absorbed systemically by the invasive plant thereby inducing systemic phytotoxicity in the invasive plant while maintaining the growth and vigor of the perennial grass as claimed. Jennings also teaches that maximum effects for weed control have been observed when micronutrient fertilizer is applied in the late summer/early fall (which reads on the claimed or early spring in advance of seasonal plant growth (and specifically states applying in August which reads on the claimed post flowering of the weed species/at least one weed species as claimed in claims 16 and 18) and late summer/early fall in the northern hemisphere, e.g. the claimed northeastern US and eastern Canada, would occur in applicant’s claimed July-September as is evidenced by CES (See paragraph beginning the summer season begins…through paragraph Fall or autumn in the northern hemisphere begins…). Jennings also teaches applying amounts of nitrogen/acre of 22 pounds and as such Jennings reads on the claimed method comprising applying (i) and (ii) as claimed (See entire document; e.g. claims 2-19, 21-23; [0018-0019]; [0046]; [0051-0053]; [0056-0059]; [0077]; [0081-0082]; [0097]; [0125, 0.35-14 pounds of plant available boron per acre]; Example 18, 22 pounds of nitrogen/acre; claims; [0148]). Jennings further teaches wherein the amounts of the micronutrient fertilizer containing the phytotoxic micronutrient to add is a function of existing amount of micronutrients in the soil and the specific weedy and specific desirable plant species present at a site where the control/application of the compositions/combinations is to occur ([0056]).
Regarding claim 1, Jennings teaches wherein the boron in the phytotoxic micronutrient is phytotoxic to the at least one invasive plant species while maintaining or increasing the growth and vigor of the perennial grass (See Example 6 [0112]; example 9 [0119]; example 15 [0132]; [0018]).
Regarding claims 1-3, Jennings teaches wherein the boron in the phytotoxic micronutrient is phytotoxic to the at least one invasive plant species while maintaining or increasing the growth and vigor of the perennial grass (See Example 6 [0112]; example 9 [0119]; example 15 [0132]; [0018]).
Jennings teaches wherein the nitrogen can be used in amounts of 22 pounds per acre and the boron can be used in amounts of 20 pounds per acre and further states that the toxic effects of excessive application of nutrients to agricultural and horticultural crops are well documented. Even the macronutrient nitrogen can be toxic to plants if applied in excess. Similarly, excessive application of micro-nutrients can cause phytotoxic effects. However, excessive micronutrient concentrations are rarely found in native soils, with the exception of mineralized areas. In mineral soils, release of micronutrients is usually quite slow. Much of the available soil micronutrients are held rather tightly by soil organic material and thus toxicity to plants is not a frequent occurrence under ‘field’ conditions. Thus, it would be obvious to optimize the amounts of nitrogen and boron to provide effective weed killing within the perennial grass populations of turf/Kentucky bluegrass while also providing effective fertilization of the grasses as this is something that one of ordinary skill in the art routinely does as it was known to adjust the amounts of micro and macronutrients for plants dependent on soil needs, plant types, weeds to be controlled, and to test the soil to determine what amounts are already present, etc. (see entire document; e.g. [0014]; [0018-0019]; [0097]; [0003]; [0010]; [0016-0018]; [0040]; [0042]; [0045]; [0049]; [0051]; [0054]; [0059-0061]; [0065]; [0056-0057]; [0075]; [0080]; [0139-0142]; [0102]; [0110]; [0111]; [0127]; [0132]). Especially since Jennings specifically teaches wherein the application of lower amounts of boron leads to increased perennial grasses in the treatment area even years after application while decreasing the amounts of dandelion and other weeds present in the perennial grasses (e.g. Kentucky bluegrass) (see entire document; [0102]; [0110]; [0111]; [0127]; [0132]; [0014]; [0018-0019]; [0097]; [0003]; [0010]; [0016-0018]; [0040]; [0042]; [0045]; [0049]; [0051]; [0054]; [0059-0061]; [0065]; [0056-0057]; [0075]; [0080]; [0139-0142]) Thus, it would be obvious to optimize the amounts of boron and nitrogen to fall within the instantly claimed amounts because it was already known in the art to use the claimed phytotoxic micronutrients in the claimed amounts to control the claimed weeds in the claimed populations of perennial grasses and it was known to apply the phytotoxic micronutrient in combination with the claimed amounts of nitrogen to fertilize the grass populations and to determine the appropriate amounts of each component to use ([0056-0058]; [0060]; [0040]; sections cited above; example 18, etc.). Thus, it would have been obvious for one of ordinary skill in the art to optimize the amounts taught by Jennings in order to develop the instantly claimed method because [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).
Regarding claims 10-11, Jennings teaches wherein their compositions comprising the phytotoxic micronutrients and macronutrients are in a dry granular formulation or can be in a liquid formulation, “Whether the formulation is applied as a dry formula or as a liquid formula is irrelevant as the objective is to achieve the desired amount of fertilization in the soil to favor the species desired and reduce or eliminate the invasive weedy species…” Thus, it would be obvious to formulate the composition of Jennings to have the boron and nitrogen both as solids or as a liquid composition comprising both agents, specifically the solid boron agent mixed in liquid ammonia for instance, because Jennings clearly teaches that whether the formulations are liquid or solid does not matter for weed control in the perennial grasses ([0053, whether applied as dry formula or liquid is irrelevant]; [0120-0122 dry granular or liquid formulation]; [0123, dry granular or liquid]; [0082, dry or liquid]; [0077-0078]; [0060]).
Regarding claims 12 and 19, Jennings teaches applying their compositions as a spray/aerial spray/liquid which contacts foliage and as such would be a foliar spray and which would also be/function as a spot spray applied to the target area, e.g. weeds (i.e. the spot) to control weeds ([0049]; [0053]; [0070]; Example 15; claims; [0011]; [0066, If foliar micronutrient uptake occurs during application of liquid micronutrient formulation, some measure of invasive species control may occur, yet this is ancillary to the main treatment effect caused by seed or root uptake from the soil.]; [0077-0079]).
Regarding claim 20, Jennings does not make any mention of fluoride in their composition(s) and as such does not include fluoride (See entire document).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
Regarding claims 1-3, Jennings does not teach wherein the application rates of boron and nitrogen are the specifically claimed amounts of claims 1-3, i.e. the about 40 to about 100 lbs/acre of nitrogen of claim 1 and/or the about 75 lbs/acre of boron and about 60 lbs per acre of nitrogen of claim 2 or the about 50 lbs/acre of boron and about 50 lbs per acre nitrogen of claim 3. However, as discussed above Jennings does teach wherein nitrogen can be used in amounts of 22 pounds per acre and the boron can be used in amounts of 20 pounds per acre, and further states that the toxic effects of excessive application of nutrients to agricultural and horticultural crops are well documented. Even the macronutrient nitrogen can be toxic to plants if applied in excess. Similarly, excessive application of micro-nutrients can cause phytotoxic effects. Jennings teaches wherein the nitrogen can be used in amounts of 22 pounds per acre and the boron can be used in amounts of 20 pounds per acre and further states that the toxic effects of excessive application of nutrients to agricultural and horticultural crops are well documented. Even the macronutrient nitrogen can be toxic to plants if applied in excess. Similarly, excessive application of micro-nutrients can cause phytotoxic effects. However, excessive micronutrient concentrations are rarely found in native soils, with the exception of mineralized areas. In mineral soils, release of micronutrients is usually quite slow. Much of the available soil micronutrients are held rather tightly by soil organic material and thus toxicity to plants is not a frequent occurrence under ‘field’ conditions. Thus, it would be obvious to optimize the amounts of nitrogen and boron to provide effective weed killing within the perennial grass populations of lawn or turf while also providing effective fertilization of the grasses as this is something that one of ordinary skill in the art routinely does as it was known to adjust the amounts of micro and macronutrients for plants dependent on soil needs, plant types, weeds to be controlled, and to test the soil to determine what amounts are already present, etc. because it was already known in the art to use the claimed phytotoxic micronutrient in the claimed amounts to control the claimed weeds in the claimed populations of perennial grasses and it was known to apply the phytotoxic micronutrient in combination with nitrogen to fertilize the grass populations and to determine the appropriate amounts of each component to use ([0056-0058]; [0060]; [0040]; sections cited above; example 18, etc.). Thus, it would have been obvious for one of ordinary skill in the art to optimize the amounts taught by Jennings in order to develop the instantly claimed method because [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).
Regarding claims 6-7, Jennings does not specifically teach that the application occurs in the northeastern US and/or eastern Canada. However, Jennings teaches that their compositions and the claimed active agents are useful to control weeds in Kentucky bluegrass and promote growth of the Kentucky bluegrass. As is taught by MDA and/or Dürr, northeastern US and/or eastern Canada are in the region where Kentucky bluegrass is found (see MDA Kentucky bluegrass section; See Dürr: Abstract; pg. 631). Thus, it would be obvious to use the methods of Jennings in the claimed regions in order to develop the instantly claimed methods.
Regarding claims 8-9 and 13-14, these effects/results (e.g. elimination of the weeds, etc.) are all result effective of the claimed applying step and would naturally flow when performing the claimed applying step which is taught and/or rendered obvious by the prior art Jennings and as such would obviously be occurring when performing the claimed method which is rendered obvious by Jennings. Specifically, it would be obvious to visually measure the area of lawn or turf covered by the at least one perennial grass species before the composition is applied and again after, e.g. 1 month after the composition is applied to visually notice any benefits from applying the boron and nitrogen and to gauge whether or not additional applications should be made which is something that one of ordinary skill in the art routinely does with weed and fertilizer compositions and wherein the claimed effects have occurred with the claimed application as discussed above this is result effective of the claimed applying step and would naturally flow when performing the claimed applying step which is taught and/or rendered obvious by the prior art Jennings in view of the secondary references as discussed above and incorporated herein.
Regarding claim 17, Jennings does not teach wherein the method further comprises providing supplemental watering of the area of lawn or turf. However, this deficiency in Jennings is addressed by UNL.
UNL teaches that it is known to water the lawn/grass after lawn treatments and throughout the growing season as needed (See entire document; watering tips section).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would be obvious for one of ordinary skill in the art to optimize the dosages of nitrogen and boron to effectively control weeds, e.g. dandelion, and effectively fertilize the perennial grasses, e.g. Kentucky bluegrass to promote growth and health of the grass because Jennings teaches that it was known to use similar amounts of boron to control the same weeds in the same grasses and that the boron could be applied in combination with fertilizers, including nitrogen fertilizer and Jennings teaches that even nitrogen can be toxic to plants if applied in excess. Thus, it would be obvious for one of ordinary skill in the art to optimize the amounts of boron and nitrogen being applied to the grasses, e.g. Kentucky bluegrass turf, to control dandelions and promote the growth of the turf since this was a known use for the claimed actives and the claimed actives were known to be used together to weed and feed/fertilize these areas prior to the instant filing. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[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 reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would be obvious for one of ordinary skill in the art at the time of the instant filing to apply the claimed combinations post-flowering of the weeds and in the claimed areas of the US and Canada because these were known areas which have native/perennial populations of Kentucky bluegrass and because Jennings teaches that it was known to be effective to apply the boron to the perennial grasses, e.g. Kentucky bluegrass areas (e.g. lawn and/or turf) during late summer as instantly claimed.
It also would have been obvious to one of ordinary skill in the art to apply the micronutrient and macronutrient formulations as liquid or as dry formulations or wherein micronutrient/boron is a dry formulation and the macronutrient is in a liquid formulation or wherein the micronutrient is in a liquid formulation and the macronutrient is in a dry formulation as instantly claimed because Jennings teaches that whether the formulations are applied as liquid or dry formulations is irrelevant and it was known to provide micronutrients and macronutrients to plants as both liquid and dry formulations and as such the formulations can be formulated as desired liquid or dry or the micronutrient as liquid and the macronutrient dry or vice versa as desired because all of the formulations provide the necessary levels of actives to the soil to control the weeds and fertilize the perennial grass plant community.
It also would have been obvious that when optimizing the boron and nitrogen to achieve the most effective weed control of dandelion and fertilizing/growth promotion of the Kentucky bluegrass by optimizing the boron and nitrogen being applied to the claimed amounts that the resulting effects of weed control for 1 month to 21 months after the composition is applied and to increased the area of turf or lawn covered by the grass species by at least 25% relative to the area of law or turf covered by the at least one weed specie 1 month after the composition is applied, etc. as claimed are result effective of the claimed applying step and optimization of the claimed actives which are taught/rendered obvious by the combined prior art for the reasons discussed above. Especially since the courts have previously determined, that generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[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 reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Further, “The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.” Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). In this case it would have been obvious to optimize the amounts of nitrogen and boron to provide the most effective weed control of dandelion and fertilizing of the Kentucky bluegrass lawn/turf and which would also obviously lead to the claimed resultant effects when the method of Jennings is optimized to achieve the claimed method as discussed above.
Finally, it would be obvious to apply supplemental watering to the grass/turf/lawn area comprising the claimed grasses because it is known to water lawns as necessary when sufficient rain, etc. is not occurring in the environment to keep the grassy areas/lawn/turf, etc. healthy.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of US Patent No. 8835355 (‘355) in view of Jennings (US20140200143), UNL (https://water.unl.edu/article/lawns-gardens-landscapes/smart-summer-watering/), MDA (https://web.archive.org/web/20150116183316/https://mda.maryland.gov/resource_conservation/documents/commhrspastgrass07.pdf), and Dürr et al. (Can. J. or Plant Sci., 2005, 85(3), pg. 631-639) and as evidenced by OSU (https://weedguide.cfaes.osu.edu/singlerecord.asp?id=33), CES (https://www.ces.fau.edu/nasa/module-3/why-does-temperature-vary/seasons.php).
Both ‘355 and the instant application teach using boron to control the same weeds in the same perennial grasses. ‘355 does not teach the claimed amounts of boron or wherein the composition further comprises nitrogen or wherein the application is during the claimed months and after blooming of the weeds, e.g. dandelion, or the properties/results/effects which are instantly claimed specifically the increased growth with the perennial grasses, e.g. Kentucky bluegrass. However, these deficiencies in ‘355 are addressed by Jennings, UNL, MDA , Dürr and as evidenced by OSU and CES.
Jennings teaches a method for negatively impacting (controlling/suppressing) the growth of at least one invasive plant species, including selective control of the claimed invasive plant species, e.g. dandelion (which as evidenced by OSU blooms in early spring in the northern hemisphere/Northern US, mostly April and May (see Biology section)), existing in the same perennial grass plant communities instantly claimed and which preserves/promotes the growth, etc. of the claimed perennial plant community species, e.g. Kentucky bluegrass (which reads on lawns and turf), etc. comprising applying the claimed (i) a phytotoxic micronutrient applied in amounts/concentrations of about 0.5 to about 20 pounds/acre of at least one water soluble micronutrient, specifically boron, which is close to the claimed range of about 25 pounds/acre to about 100 pounds/acre of boron, and teaches wherein the micronutrients (boron) can be applied in combination with macronutrients, specifically nitrogen, e.g. nitrate nitrogen, and wherein other micronutrients or macronutrients can also be applied which are fertilizers and reads on applying an organic or inorganic fertilizer, and obviously because Jennings teaches applying the same amounts of the same phytotoxic micronutrients to the same invasive plants Jennings application(s) is/are absorbed systemically by the invasive plant thereby inducing systemic phytotoxicity in the invasive plant while maintaining the growth and vigor of the perennial grass as claimed. Jennings also teaches that maximum effects for weed control have been observed when micronutrient fertilizer is applied in the late summer/early fall (which reads on the claimed or early spring in advance of seasonal plant growth (and specifically states applying in August which reads on the claimed post flowering of the weed species/at least one weed species as claimed in claims 16 and 18) and late summer/early fall in the northern hemisphere, e.g. the claimed northeastern US and eastern Canada, would occur in applicant’s claimed July-September as is evidenced by CES (See paragraph beginning the summer season begins…through paragraph Fall or autumn in the northern hemisphere begins…). Jennings also teaches applying amounts of nitrogen/acre of 22 pounds and as such Jennings reads on the claimed method comprising applying (i) and (ii) as claimed (See entire document; e.g. claims 2-19, 21-23; [0018-0019]; [0046]; [0051-0053]; [0056-0059]; [0077]; [0081-0082]; [0097]; [0125, 0.35-14 pounds of plant available boron per acre]; Example 18, 22 pounds of nitrogen/acre; claims; [0148]). Jennings further teaches wherein the amounts of the micronutrient fertilizer containing the phytotoxic micronutrient to add is a function of existing amount of micronutrients in the soil and the specific weedy and specific desirable plant species present at a site where the control/application of the compositions/combinations is to occur.
Jennings teaches wherein the boron in the phytotoxic micronutrient is phytotoxic to the at least one invasive plant species while maintaining or increasing the growth and vigor of the perennial grass (See Example 6 [0112]; example 9 [0119]; example 15 [0132]; [0018]).
Jennings teaches wherein the nitrogen can be used in amounts of 22 pounds per acre and the boron can be used in amounts of 20 pounds per acre and further states that the toxic effects of excessive application of nutrients to agricultural and horticultural crops are well documented. Even the macronutrient nitrogen can be toxic to plants if applied in excess. Similarly, excessive application of micro-nutrients can cause phytotoxic effects. However, excessive micronutrient concentrations are rarely found in native soils, with the exception of mineralized areas. In mineral soils, release of micronutrients is usually quite slow. Much of the available soil micronutrients are held rather tightly by soil organic material and thus toxicity to plants is not a frequent occurrence under ‘field’ conditions. Thus, it would be obvious to optimize the amounts of nitrogen and boron to provide effective weed killing within the perennial grass populations of turf/Kentucky bluegrass while also providing effective fertilization of the grasses as this is something that one of ordinary skill in the art routinely does as it was known to adjust the amounts of micro and macronutrients for plants dependent on soil needs, plant types, weeds to be controlled, and to test the soil to determine what amounts are already present, etc. (see entire document; e.g. [0014]; [0018-0019]; [0097]; [0003]; [0010]; [0016-0018]; [0040]; [0042]; [0045]; [0049]; [0051]; [0054]; [0059-0061]; [0065]; [0056-0057]; [0075]; [0080]; [0139-0142]; [0102]; [0110]; [0111]; [0127]; [0132]). Especially since Jennings specifically teaches wherein the application of lower amounts of boron leads to increased perennial grasses in the treatment area even years after application while decreasing the amounts of dandelion and other weeds present in the perennial grasses (e.g. Kentucky bluegrass) (see entire document; [0102]; [0110]; [0111]; [0127]; [0132]; [0014]; [0018-0019]; [0097]; [0003]; [0010]; [0016-0018]; [0040]; [0042]; [0045]; [0049]; [0051]; [0054]; [0059-0061]; [0065]; [0056-0057]; [0075]; [0080]; [0139-0142]) Thus, it would be obvious to optimize the amounts of boron and nitrogen to fall within the instantly claimed amounts because it was already known in the art to use the claimed phytotoxic micronutrients in the claimed amounts to control the claimed weeds in the claimed populations of perennial grasses and it was known to apply the phytotoxic micronutrient in combination with the claimed amounts of nitrogen to fertilize the grass populations and to determine the appropriate amounts of each component to use ([0056-0058]; [0060]; [0040]; sections cited above; example 18, etc.). Thus, it would have been obvious for one of ordinary skill in the art to optimize the amounts taught by Jennings in order to develop the instantly claimed method because [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).
Jennings teaches wherein their compositions comprising the phytotoxic micronutrients and macronutrients are in a dry granular formulation or can be in a liquid formulation, “Whether the formulation is applied as a dry formula or as a liquid formula is irrelevant as the objective is to achieve the desired amount of fertilization in the soil to favor the species desired and reduce or eliminate the invasive weedy species…” Thus, it would be obvious to formulate the composition of Jennings to have the boron and nitrogen both as solids or as a liquid composition comprising both agents, specifically the solid boron agent mixed in liquid ammonia for instance, or wherein the micronutrient is in a liquid formulation and the macronutrient is a solid as instantly claimed because Jennings clearly teaches that whether the formulations are liquid or solid does not matter for weed control in the perennial grasses ([0053, whether applied as dry formula or liquid is irrelevant]; [0120-0122 dry granular or liquid formulation]; [0123, dry granular or liquid]; [0082, dry or liquid]; [0077-0078]; [0060]).
Jennings teaches applying their compositions as a spray/aerial spray/liquid which contacts foliage and as such would be a foliar spray and which would also be/function as a spot spray applied to the target area, e.g. weeds (i.e. the spot) to control weeds ([0049]; [0053]; [0070]; Example 15; claims; [0011]; [0066, If foliar micronutrient uptake occurs during application of liquid micronutrient formulation, some measure of invasive species control may occur, yet this is ancillary to the main treatment effect caused by seed or root uptake from the soil.]; [0077-0079]).
Jennings does not make any mention of fluoride in their composition(s) and as such does not include fluoride (See entire document).
Jennings and ‘355 do not teach wherein the application rates of boron and nitrogen are the specifically claimed amounts of claims 1-3, i.e. the about 40 to about 100 lbs/acre of nitrogen of claim 1 and/or the about 75 lbs/acre of boron and about 60 lbs per acre of nitrogen of claim 2 or the about 50 lbs/acre of boron and about 50 lbs per acre nitrogen of claim 3. However, as discussed above Jennings does teach wherein nitrogen can be used in amounts of 22 pounds per acre and the boron can be used in amounts of 20 pounds per acre, and further states that the toxic effects of excessive application of nutrients to agricultural and horticultural crops are well documented. Even the macronutrient nitrogen can be toxic to plants if applied in excess. Similarly, excessive application of micro-nutrients can cause phytotoxic effects. Jennings teaches wherein the nitrogen can be used in amounts of 22 pounds per acre and the boron can be used in amounts of 20 pounds per acre and further states that the toxic effects of excessive application of nutrients to agricultural and horticultural crops are well documented. Even the macronutrient nitrogen can be toxic to plants if applied in excess. Similarly, excessive application of micro-nutrients can cause phytotoxic effects. However, excessive micronutrient concentrations are rarely found in native soils, with the exception of mineralized areas. In mineral soils, release of micronutrients is usually quite slow. Much of the available soil micronutrients are held rather tightly by soil organic material and thus toxicity to plants is not a frequent occurrence under ‘field’ conditions. Thus, it would be obvious to optimize the amounts of nitrogen and boron to provide effective weed killing within the perennial grass populations of lawn or turf while also providing effective fertilization of the grasses as this is something that one of ordinary skill in the art routinely does as it was known to adjust the amounts of micro and macronutrients for plants dependent on soil needs, plant types, weeds to be controlled, and to test the soil to determine what amounts are already present, etc. because it was already known in the art to use the claimed phytotoxic micronutrient in the claimed amounts to control the claimed weeds in the claimed populations of perennial grasses and it was known to apply the phytotoxic micronutrient in combination with nitrogen to fertilize the grass populations and to determine the appropriate amounts of each component to use ([0056-0058]; [0060]; [0040]; sections cited above; example 18, etc.). Thus, it would have been obvious for one of ordinary skill in the art to optimize the amounts taught by Jennings in order to develop the instantly claimed method because [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).
‘355 and Jennings do not specifically teach that the application occurs in the northeastern US and/or eastern Canada. However, Jennings teaches that their compositions and the claimed active agents are useful to control weeds in Kentucky bluegrass and promote growth of the Kentucky bluegrass. As is taught by MDA and/or Dürr, northeastern US and/or eastern Canada are in the region where Kentucky bluegrass is found (see MDA Kentucky bluegrass section; See Dürr: Abstract; pg. 631). Thus, it would be obvious to use the methods of Jennings in the claimed regions in order to develop the instantly claimed methods.
Regarding claims 8-9 and 13-14, these are result effective of the claimed applying step and would naturally flow when performing the claimed applying step which is taught and/or rendered obvious by the prior art ‘355 and Jennings and the combined references and as such would obviously be occurring when performing the claimed method which is rendered obvious by Jennings. Specifically, it would be obvious to visually measure the area of lawn or turf covered by the at least one perennial grass species before the composition is applied and again after, e.g. 1 month after the composition is applied to visually notice any benefits from applying the boron and nitrogen and to gauge whether or not additional applications should be made which is something that one of ordinary skill in the art routinely does with weed and fertilizer compositions and wherein the claimed effects have occurred with the claimed application as discussed above this is result effective of the claimed applying step and would naturally flow when performing the claimed applying step which is taught and/or rendered obvious by the prior art Jennings in view of the secondary references as discussed above and incorporated herein.
‘355 and Jennings does not teach wherein the method further comprises providing supplemental watering of the area of lawn or turf. However, this deficiency in Jennings is addressed by UNL.P
UNL teaches that it is known to water the lawn/grass after lawn treatments and throughout the growing season as needed (See entire document; watering tips section).
It would be obvious for one of ordinary skill in the art to optimize the dosages of nitrogen and boron to effectively control weeds, e.g. dandelion, and effectively fertilize the perennial grasses, e.g. Kentucky bluegrass to promote growth and health of the grass because Jennings teaches that it was known to use similar amounts of boron to control the same weeds in the same grasses and that the boron could be applied in combination with fertilizers, including nitrogen fertilizer and Jennings teaches that even nitrogen can be toxic to plants if applied in excess. Thus, it would be obvious for one of ordinary skill in the art to optimize the amounts of boron and nitrogen being applied to the grasses, e.g. Kentucky bluegrass turf, to control dandelions and promote the growth of the turf since this was a known use for the claimed actives and the claimed actives were known to be used together to weed and feed/fertilize these areas prior to the instant filing. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[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 reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would be obvious for one of ordinary skill in the art at the time of the instant filing to apply the claimed combinations post-flowering of the weeds and in the claimed areas of the US and Canada because these were known areas which have native/perennial populations of Kentucky bluegrass and because ‘355 and Jennings teaches that it was known to be effective to apply the boron to the perennial grasses, e.g. Kentucky bluegrass areas (e.g. lawn and/or turf) during late summer as instantly claimed.
It also would have been obvious to one of ordinary skill in the art to apply the micronutrient and macronutrient formulations as liquid or as dry formulations or wherein micronutrient/boron is a dry formulation and the macronutrient is in a liquid formulation or wherein the micronutrient is in a liquid formulation and the macronutrient is in a dry formulation as instantly claimed because Jennings teaches that whether the formulations are applied as liquid or dry formulations is irrelevant and it was known to provide micronutrients and macronutrients to plants as both liquid and dry formulations and as such the formulations can be formulated as desired liquid or dry or the micronutrient as liquid and the macronutrient dry or vice versa as desired because all of the formulations provide the necessary levels of actives to the soil to control the weeds and fertilize the perennial grass plant community.
Thus, one of ordinary skill in the art would conclude that the method taught by ‘355 renders obvious the claimed method when taken in view of the secondary references cited herein.
Conclusion
No claims are allowed.
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/ERIN E HIRT/Primary Examiner, Art Unit 1616