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 .
Applicants’ amendment filed 6/16/2026 has been entered. Claim 16 was amended. Claim 33 has been cancelled. Claims 16-32, 34 and 35 are pending. Claims 19-25, 27, 28, 30, 32 and 34 are withdrawn. Claims 16-18, 26, 29, 31 and 35 are under examination.
Withdrawn rejections
Applicant's amendments and arguments filed 6/16/2026 are acknowledged and have been fully considered. Any rejection and/or objection not specifically addressed below is herein withdrawn.
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 16-18, 26, 29, 31 and 35 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of copending Application No. 17/416,266 (herein ‘266) in view of Shao et al. (US 2014/0106972). Although the claims at issue are not identical, they are not patentably distinct from each other because the present invention allows for the surfactant to be selected from an alkylpolyglucoside and a co-surfactant of formula 4-1 whereas the copending application requires a co-surfactant of Formula 9 to 14. It is for this reason that Shao et al. is joined. Shao et al. incorporating alkylbenzene sulfonate surfactants of formula I in the herbicide formulations comprising auxinic herbicides to control spray drift (abstract).
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The group R includes branched C12 alkyl chain [0008]. Therefore, the claims are prima facie obvious in view of the copending claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed 6/16/2026 have been fully considered the rejection has been held in abeyance. Therefore, the rejection has been maintained.
Claim Rejections - 35 USC § 112
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.
Claims 17, 18 and 35 are 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. Claims 17 and 26 recite “alkyl glucamide ester surfactant” and “ethoxylated fatty alcohol phosphate ester surfactant” as components of claim 16, however, the limitations are cancelled subject matter. Claim 18 limits the co-surfactant (b) to Formula (1) and claim 35 limits the co-surfactant (b) to Formula 4-2, however co-surfactant (b) has been limited to formula 4-1 and the structure recites broader structures not within the scope of amended co-surfactant (b). Therefore, the claims fail to properly further limit the scope of claim 16. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claim(s) 16, 17, 26, 29 and 31 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bean (WO 00/49873; published August 31, 2000) in view of Shao et al. (US 2014/0106972; published April 17, 2014).
Applicant’s Invention
Applicant claims a liquid composition comprising
30 wt.% of the composition water,
one or more electrolyte agrochemicals dissolved in the water in a total amount of 20 wt.% of the water,
a surfactant system comprising;
alkylpolyglucoside surfactant and
co-surfactant of formula 4-1
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, and
one or more agrochemicals suspended in the water.
With respect to claims 16, 17, 26, 29 and 31 of the instant application, Bean teach a storage-stable aqueous agrochemical concentrate formulation comprising a) an agrochemical electrolyte such as glyphosate, b) a water- insoluble agrochemical system such as diuron, C) and alkylglycoside and d) a co-surfactant that interacts with the alkylglycoside to form a structured aqueous system (abstract; claim 29). The water-insoluble herbicides can include diuron, bensulfuron, chlorimuron, chlorsulfuron, methsulfuron, mesotrione, thifensulfuron and nicosulfuron (page 5, lines 1-5). The water-insoluble is prepared as a finely divided suspension prepared by milling the solid agrochemical in water (page 5, lines 8-13). The alkylglycoside includes alkylglucosides of formula I below, wherein n is 1-3 and R5 is a branched or straight C4-C18 alkyl groups (page 6, lines 1-13; limitation of claims 17 and 31).
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The formulations further include a minor proportion of an ionic surfactant which increases the amount of structuring at high temperature and lowers the amount of alkylglycoside and co-surfactant needed to produces stable formulations (page 6, lines 14-21). The ionic surfactants (component e) include cationic, anionic and amphoteric surfactants including alkyl sulfates, alkyl sulphosuccinates, alkyl phosphates and alkylbenzene sulphonates and their derivatives having at least one long chain alkyl or alkenyl substituent (page 6, line22 through page 7, line 7). The electrolyte is preferably glyphosate in a concentration of greater than 120 g/L, preferably greater than 330 g/I (page 7, lines 13-22). The ionic surfactant is preferably 0 to 1 part by weight per 1 part by weight alkylglycoside (page 8, lines 5-9). The inventive formulations comprise 200 g/L (20% wt/vol.) glyphosate trimesium, 200 g/L diuron, 20 g/l Arquad 16-29 (component e), 98 g/I| Agrimul PG2067 (alkylpolyglycoside where R5 is a mixture of octyl and decyl), 28 g/L octanol and water to 1 liter (page 10, lines 16-30; Example 2, page 11, lines 12-15). Additionally, a formulation comprising 350 g/L (35% wt/vol.) glyphosate trimesium, 100 g/L diuron, 10 g/l Arquad 16-29 (component e) and additional amount of component e) is added to progressively improve stability 20, 30 and 40 respectively), 35 g/l Agrimul PG2067 (alkylpolyglycoside where R5 is a mixture of octyl and decyl), 10 g/L octanol and water to 1 liter (Example 3 page 14, lines 5-17).
Bean et al. teach alkylbenzene sulphonates but does not specify a branched alkylbenzene sulphonate co-surfactant of formula 4-1.
It is for this reason that Shao et al. is joined.
Shao et al. teach spray drift reduced by incorporating one or more alkylbenzene sulfonate surfactants to the mixture (abstract).
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The group R preferably includes branched C12 alkyl chain [0008]. Ninate 411 is a branched C9-C17 linear alkylbenzene sulfonate which shows unexpected reduced spray drift when formulated with 2,4-D [0009; Table 1]. Formulating glyphosate formulations with the alkylbenzene sulfonates also show reduced driftable fines (Table 3).
Both Bean and Shao et al. are drawn to agrochemical compositions comprising glyphosate and alkylbenzene sulfonates. Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings Bean and Shao et al. to form a compositions wherein the co- surfactant is a branched alkylbenzene sulfonate of formula 4-1 with a reasonable expectation of success. One of ordinary skill would have been motivated at the time of the invention to combine the teachings of Bean and Shao et al. to form a comprising Formula 4-1 because Shao et al. teach branched C9-C17 alkylbenzene sulfonates aid in reducing spray drift of electrolyte agrochemical formulations comprising glyphosate.
Response to Arguments
Applicant's arguments filed 6/16/2026 have been fully considered but they are not persuasive.
Applicant first argues that Bean does not disclose the claimed surfactant system because the co-surfactants taught for the structuring function are different from those now claimed and alkylbenzene sulfonates are not disclosed by Bean as the cosurfactant which interacts with the alkyl glycoside. The Examiner is not persuaded by this argument because the rejection is based on the teachings of Bean in view of Shao. Bean teaches a storage-stable aqueous agrochemical concentrate formulation comprising a) an agrochemical electrolyte such as glyphosate, b) a water- insoluble agrochemical system such as diuron, C) and alkylglycoside and d) a co-surfactant that interacts with the alkylglycoside to form a structured aqueous system (abstract; claim 29). The formulations further include a minor proportion of an ionic surfactant which increases the amount of structuring at high temperature and lowers the amount of alkylglycoside and co-surfactant needed to produces stable formulations (page 6, lines 14-21). These include ionic surfactants (component e) alkylbenzene sulphonates (page 6, line22 through page 7, line 7). Shao et al. teach spray drift reduced by incorporating one or more alkylbenzene sulfonate surfactants to agricultural mixtures (abstract). Therefore, forming mixtures of alkyglucosides with the claimed alkybenzene sulphonates would have been prima facie obvious to one of ordinary skill seeking to formulate an agricultural formulation. Additionally, the claims are drawn to an agricultural composition comprising a mixture of surfactant not a method of interacting an alkylglucoside surfactant with an alkylbenzene sulfonate surfactant. MPEP 2112.01 states that products of identical chemical composition cannot have mutually exclusive properties, so the properties of a composition are inseparable In re Spada, 911 F.2d 705,709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Second, Applicant argues that the optional ionic surfactants, which include alkylbenzene sulfonates were not used interchangeably as if they were interchangeable with the claimed co-surfactant because the example disclose alkylglycoside in combination with octanol as the structuring co-surfactant. Applicant further argues that requirement that there is not change in their respective functions has no been met for the rationale. The Examiner is not persuaded by this argument because the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Third, Applicant argues that Shao does not address storage stability in high electrolyte suspension concentrates and does not teach forming vesicles or a structured aqueous suspending phase wherein the alkylbenzene sulfonates can interact with alkylpolyglucosides to suspend a water-insoluble agrochemical. The Examiner is not persuaded by this rejection because the claims do not claim improved storage stability or forming vesicles. Furthermore, the specification teaches that the surfactant system inherent forms with the alkylpolyglucoside is mixed with the surfactant of formula 4-1. The discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer." Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus, the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). If the prior art structure is capable of performing the intended use, then it meets the claim. The fact that the inventor 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. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Finally, Applicant argues Example 1 in the specification demonstrates unexpected results that are not predictable, namely the anionic structures required tail structure provides little to no separation and good pourability. Applicant argues that the data in the experimental Annex attached shows that systems using APG with Nansa HS805 or Hostapur SAS93 gave much better stability at higher total surfactant concentrations than those disclosed by Bean. However, the data is not commensurate in scope with the claimed invention. The claims require 30wt% water, 20wt% of one or more electrolyte agrochemicals, alkylpolyglucoside, the surfactant of Formula 4-1 and one or more agrochemicals suspended in the water whereas the data only analyzes a formulation comprising a only 5.76% water, 90.92% 10-34-0 fertilizer, 0.025-3% C8,C10 alkyl polyglucoside, 0.025-3% sodium dodecylbenzene sulphonate or sodium secondary alkyl sulfonate (Formula 4-1) and 2% azoxystrobin. Therefore, the rejection has been maintained.
Conclusion
No claims allowed.
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 DANIELLE D JOHNSON whose telephone number is (571)270-3285. The examiner can normally be reached Monday-Friday 9:00 am-5:30 pm.
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DANIELLE D. JOHNSON
Examiner
Art Unit 1617
/KYLE A PURDY/Primary Examiner, Art Unit 1611
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