DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Claims
Claims 1-16 are pending.
Applicant is advised that should claim 2 be found allowable, claim 9 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 11 March 2024 was filed before the mailing of an Office action. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claims 1, 3-5 and 9-16 are objected to because of the following informalities:
Claims 1-2, 9-12 and 14-16, the term cyprosulfamide is misspelled as cyprosulfamid.
Claims 3-4, 10 and 13, the compound names should not be capitalized.
Claims 3 and 13 do not end with a period.
Claim 5, the term platyphylla is misspelled as platvphvlla; and in line 8 “{” should be amended to “(”.
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 6, 10-11 and 15-16 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.
Regarding claim 6, the phrase “preferably” renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 10 recites the limitation "flucarbazone" in the method of claim 10. There is insufficient antecedent basis for this limitation in the claim. Claim 10 does not support flucarbazone.
Regarding claim 11, it is unclear how the method can comprise applying 20 to 100 g ai/ha of flucarbazone and 50 to 200 g ai/ha of cyprosulfamide, when claims 9 and 10 both state that the ratio of flucarbazone and cyprosulfamide is ranging from 5:1 to 1:1. According to the ratio claimed, the amount of cyprosulfamide cannot exceed the amount of flucarbazone. However, claim 11 includes amounts of flucarbazone that is less than the minimum amount of cyprosulfamide, and also includes amounts of cyprosulfamide that exceeds the maximum amount of flucarbazone.
Claims 15-16 recite the limitation “flucarbazone”. There is insufficient antecedent basis for this limitation in the claims. Claims 15 and 16 depend from claim 12 which recites “a triazolinone herbicide”, but does not recite flucarbazone.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 11 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. The method of claim 11 recites application of flucarbazone and cyprosulfamide in a rate range that includes values that are outside the scope of the ratio of claims 9-10. For instance, application of 20 g ai/ha of flucarbazone combined with the minimum of 50 g ai/ha cyprosulfamide (ratio of 0.4:1) and application of 100 g ai/ha flucarbazone combined with the maximum of 200 g ai/ha cyprosulfamide (ratio of 0.5:1) are each outside the scope of claims 9-10, which recite 5:1 to 1:1. Applicant may cancel the claim, amend the claim to place the claim in proper dependent form, rewrite the claim in independent form, or present a sufficient showing that the dependent claim complies with the statutory requirements.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 12-14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zagar et al. (US 2013/0310257 A1).
Regarding claims 12-14, Zagar et al. disclose that particular preferred compositions include a composition comprising the safener cyprosulfamide, and the herbicide selected from flucarbazone, propoxycarbazone and carfentrazone ([0077], Table A, #185, #194 and #210).
Claims 12-14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Maier et al. (EP 1 891 855 A1).
Regarding claims 12-14, Maier et al. disclose compositions comprising an herbicide and safener, and specifically disclose the combination of cyprosulfamide with either flucarbazone, propoxycarbazone or sulfentrazone ([0036]).
Claims 1, 3, 5 and 12-13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ikeda (US 2013/0237417 A1).
Regarding claims 1, 3, 5 and 12-13, Ikeda discloses an herbicidal composition comprising cyprosulfamide and sulfentrazone ([0098], Formulation Example 5). Ikeda discloses that the composition comprising a mixed liquid of sulfentrazone, isoxaflutole, and cyprosulfamide is sprayed uniformly on Amaranthus retroflexus, Ipomoea hederacea, Echinochloa crus-galli, and Digitaria ciliaris, wherein the herbicidal mixture exhibited excellent herbicidal activity ([0108], Example 4). Ikeda further discloses spraying a mixed liquid of sulfentrazone, isoxaflutole, and cyprosulfamide to the soil where grape, Satsuma mandarin, peach, and almond are cultivated, resulting in a high herbicidal activity to weeds ([0115]-[0116], Example 10). See also Claims 1-3, 5-7, and 9-13.
Regarding the method of reducing phytotoxicity, Ikeda discloses that the composition of the present invention does not cause significant phytotoxicity to useful plants ([0020]).
Claims 1, 3, 5-7 and 12-13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Peng et al. (US 2019/0124925 A1).
Regarding claims 1, 3, 5-7 and 12-13, Peng et al. disclose a water-dispersible granule, wherein the active ingredient B is amicarbazone, and the safener compound C is cyprosulfamide, the composition is: 18% A3 + 45% amicarbazone + 6% cyprosulfamide + 10% a naphthalene sulfonate as a dispersant + 5% Nekal as wetting agent + 1% polyvinyl alcohol as a disintegrant + diatomaceous earth as a filler as balance ([0134]-[0136]).
Peng et al. disclose that after making extensive experimentations and explorations, the present inventors have unexpectedly dis covered that when a mixture of a compound A, an active ingredient B and a safener compound C is used for the control of Gramineae weeds for postemergence application in cornfields, surprising and unexpected synergistic effects are achieved, especially the mixture exhibits significantly synergistic effects on the control of Gramineae weeds such as Echinochloa crusgalli and Setaria viridis, broad-leaf weeds such as Chenopodium album, Abutilon avicennae, and Convolvulus arvernsis, and Gyperaceae weeds such as Rhizoma Cyperi etc., thereby reducing application dose, being safe for corns and reducing environmental pollution, and the rational compounding leads to reduced agricultural costs and highly effective control of weeds resistant to ALS inhibitors ([0180]).
Claims 1, 6-8 and 12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Giannakopoulos et al. (Pest Management Science, 2020).
Regarding claims 1, 6-8 and 12, Giannakopoulos et al. disclose applying compositions to maize and wheat, including treating the plants and seeds, wherein the compositions comprise 5 or 50 g/ha thiencarbazone-methyl (TCM; a triazolinone herbicide) and 100 g/ha cyprosulfamide (CSA) (pg. 3414, Section 2.3; pg. 3417, Section 3.1; pg. 3420-3421).
Claim Rejections - 35 USC § 103
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 1-11 and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Zagar et al. (US 2013/0310257 A1).
The teachings of Zagar et al. are discussed above.
Regarding claims 1 and 3-4, Zagar et al. teach a method for controlling undesired vegetation in crop and non-crop areas, comprising applying an herbicidal composition containing the herbicide and safener to the plants to be controlled within the areas (Abstract; [0009], [0015]-[0020]; Claims 47-49). Zagar et al. teach reducing damage caused by the herbicidal composition to the crops ([0023], [0032], [0141]).
Regarding claim 5, Zagar et al. teach that the compositions are suitable for controlling a large number of harmful plants, including monocotyledonous weeds and dicotyledonous weeds. They are in particular for controlling Amaranthus spp., Cenchrus species such as Cenchrus echinatus, Brachiaria spp., Echinochloa species such as barnyardgrass (Echinochloa crusgalli var. crus-galli), Digitaria species such as crabgrass (Digitaria sanguinalis), etc. ([0078]).
Regarding claims 6-7, Zagar et al. teach that the crops include cereal crops, such as corn, wheat, rye and barley ([0009], [0079], [0083]; Claim 49).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to use the compositions according to Zagar et al., including compositions #185, #194 and #210, for the control of undesired plants in crops, wherein the undesired plants include the instantly claimed weed species and the crops include cereal crops, such as corn, wheat, rye and barley. A person of ordinary skill in the art would have a reasonable expectation of success because Zagar et al. specifically teach the compositions comprising cyprosulfamide and a triazolinone herbicide, and also teach that the compositions are suitable for the control of various weeds within crops.
Zagar et al. do not explicitly disclose reducing phytotoxicity in crops,
Regarding claims 2, 9-10 and 15, Zagar et al. teach that in a preferred embodiment of the invention, the composition contains at least one safener in an effective amount, which is generally at least 0.1% by weight, in particular at least 0.2 or at least 0.5% by weight, based on the total amount of herbicide compound A, pinoxaden and, if present, herbicide compound D. In this preferred embodiment, the weight ratio of the herbicide compound A and the herbicide safener compound C is generally from 2:1 to 1:15, in particular from 1:1 to 1:7 wherein the herbicide compound A is calculated as topramezone. In this preferred embodiment, the weight ratio of the herbicide compound A and pinoxaden is preferably in the range from 1:1 to 1:15, in particular from 1:2 to 1:6. In this preferred embodiment, the weight ratio of the total amounts of herbicide compound A plus pinoxaden to the amount of the herbicide safener compound C is generally from 6:1 to 1:6, in particular from 3:1 to 1:3 wherein the herbicide compound A is calculated as topramezone ([0032]).
If the compositions of the invention comprise a further herbicide component D, the relative weight ratio of herbicide compound A, calculated as topramezone, to the total amount of herbicide compounds B and D, is preferably from 1:1 to 1:500, in particular from 1:1 to 1:100, wherein each herbicide compound D, which is an ester or a salt of an acid is calculated as the acid. In these compositions, the weight ratio of herbicide compound B to herbicide compound D is preferably from 10:1 to 1:100, in particular from 10:1 to 1:20. In this embodiment the weight ratio of herbicide A and safener C is as defined above. Accordingly, in the methods and uses of the invention, topramezone, pinoxaden and the herbicide compounds D and safener C are preferably applied within these weight ratios ([0046]).
Therefore, Zagar et al. teach a weight ratio of compound A to herbicide safener C (i.e., cyprosulfamide) of from 1:1 to 1:7; the relative weight ratio of compound A to the total amount of compounds B and D (i.e., triazolinone herbicide), is preferably from 1:1 to 1:100; and the weight ratio of compound B to compound D is preferably from 10:1 to 1:20.
Regarding claims 8, 11 and 16, Zagar et al. teach the application rate of the herbicide safener compound C (in case of salts calculated as the acid) is generally from 5 to 75 g/ha and in particular from 10 to 50 g/ha ([0095]). In the method of the invention, the application rate of the further herbicide compound D (in case of salts calculated as the acid) is generally from 1 to 2500 g/ha and in particular from 5 to 1000 g/ha ([0096]). The rate of application of the ALS inhibitors mentioned as group D.2, including flucarbazone and propoxycarbazone, is generally from 1 to 500 g/ha, in particular from 3 to 200 g/ha of active substance (a.s.) ([0098]). The rate of application of the protox inhibitors mentioned as group D.4, including carfentrazone, is generally from 1 to 1000 g/ha, in particular from 5 to 500 g/ha of active substance (a.s.) ([0100]).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to determine through routine experimentation the optimum or workable ratio and application rates for the triazolinone herbicide and cyprosulfamide safener combinations for the control of weeds in crops.
The examiner respectfully points out the following from MPEP 2144.05: “[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); 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); 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).
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).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nathan W Schlientz whose telephone number is (571)272-9924. The examiner can normally be reached 10:00 AM to 6:00 PM, Monday through Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue Liu can be reached at (571) 272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/N.W.S/Examiner, Art Unit 1616
/Mina Haghighatian/Primary Examiner, Art Unit 1616
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