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 .
Acknowledgement is made to Applicant’s claims filed 11/24/2023.
Claims 1 and 3-14 are pending and are currently under consideration.
Claims 11-14 are newly added.
Claims 1 and 6-9 are currently amended.
Claim 2 is cancelled.
Withdrawn Rejections and/or Objections
The rejections in the previous Office Action have been withdrawn in view of Applicant’s amendments to claims 1 and 7-9.
New Grounds of Rejection – Necessitated by Applicant’s Amendments
Claim Rejections - 35 USC § 102
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 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.
Claim(s) 1 5, 9, 10, and 11 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Stock et al (CN 101562978 – English Machine Translation)
Stock teaches a liquid herbicidal composition comprising the azole quinoline grass ester, pinoxaden (see entire document, for instance, Abstract and page 2, fourth paragraph). The composition is taught as being sprayed (see entire document, for instance, page 5, fourth paragraph from the bottom). The composition is taught as comprising the azole quinoline grass ester (pinoxaden) in an amount of 2-10%, an emulsifier (namely the block copolymer of ethylene oxide and propylene oxide) in an amount of 2-30%, a solvent (namely gamma-butyrolactone) in an amount of 10-60%, and a safener (namely mefenpyrdiethyl) (see entire document, for instance, claims 1, 3, 4, 7, and 8). The composition is taught as having embodiments where the composition comprises a co-herbicide (namely sulfonylureas) (see entire document, for instance, page 7, second paragraph).
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.
Claim(s) 1 and 3-14 (all claims currently under consideration) is/are rejected under 35 U.S.C. 103 as being unpatentable over Stock et al (CN 101562978 – English Machine Translation).
Stock teaches a liquid herbicidal composition comprising the azole quinoline grass ester, pinoxaden (see entire document, for instance, Abstract and page 2, fourth paragraph). The composition is taught as being sprayed (see entire document, for instance, page 5, fourth paragraph from the bottom). The composition is taught as comprising the azole quinoline grass ester (pinoxaden) in an amount of 2-10%, an emulsifier (namely the block copolymer of ethylene oxide and propylene oxide) in an amount of 2-30%, a solvent (namely gamma-butyrolactone) in an amount of 10-60%, and a safener (namely mefenpyrdiethyl) (see entire document, for instance, claims 1, 3, 4, 7, and 8). The composition is taught as having embodiments where the composition comprises a co-herbicide (namely sulfonylureas) (see entire document, for instance, page 7, second paragraph).
Stock, while teaching the instantly components and ranges that overlap the instantly claimed ranges, does not provide a singular embodiment that utilizes all of the claimed elements in combination.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the instantly claimed invention to utilize the components taught by Stock in the composition of Stock for the purposes articulated in Stock in the amounts taught in Stock. One would have been motivated to do so since Stock teaches all of said elements are options for the invention of Stock. There would be a reasonable expectation of success since it would require no more than following the guidance set forth in Stock in order to arrive at the instantly claimed invention. Further, the ranges taught in Stock directly overlap the instantly claimed ranges. It is noted that MPEP 2144.05 states: “In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997).
Response to Arguments
It is noted that the previous grounds of rejection have been withdrawn in view of Applicant’s amendments, and as such, the arguments directed to the withdrawn grounds of rejection have been rendered moot.
Conclusion
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 TREVOR M LOVE whose telephone number is (571)270-5259. The examiner can normally be reached M-F typically 6:30-3.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany Barham can be reached at 5712726175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TREVOR LOVE/Primary Examiner, Art Unit 1611