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 .
Status of Application
Applicants' arguments/remarks filed 04/17/2026 are acknowledged. Claims 24-26 and 38 are currently amended. Claim 48 is newly canceled. Claims 24-47 are examined on the merits within and are currently pending.
Withdrawn Rejections
With applicants' amendment, filed 04/17/2026 and with respect to applicant’s arguments/remarks:
the 35 U.S.C. § 103 rejection of Claim 48 has been withdrawn in view of the cancellation of the claim;
the 35 U.S.C. § 102(a)(1) rejection of Claims 24-47 has been withdrawn in view of the amendments;
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim(s) 24-26 is/are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
Claim(s) 24 recites a method for treating a crop comprising:
forming a spray formulation by combining a herbicide formulation with a volatility
reduction adjuvant comprising: A, B and C:
A: a salt of a volatile acid;
B: a salt of a nonvolatile acid; and
C: one or more of polyacrylamide, guar gum, xanthan gum, and other drift control polymers,
But, applicant clearly combining A and B in SPEC and reciting C, but no combination of A+B+C:
Another embodiment is provided in a method for treating a crop comprising:
forming a spray formulation by combining a herbicide formulation with a volatility
reduction adjuvant comprising:
A: a salt of a volatile acid; and
B: a salt of a nonvolatile acid. (SPEC-0011).
In an embodiment the volatility reduction adjuvant further comprises C: polyacrylamide, guar, or other drift control agents which function to reduce the amount of fine particles produced during application and provides an additional feature of drift control in a single product. (SPEC-0019).
And SPEC-0033 recites a combination of A and B, or A and C. And SPEC-0035 concludes that for each combination of A+B: A: potassium acetate with B: potassium citrate and A+C: A: potassium acetate with C: sodium polyacrylate demonstrates that the measured % reduction for each was greater than the expected percent reduction. Specification does not recite of A+B+C. Applicant has not provided support for the amended claim of combination of A+B+C. A+B+C is a new matter.
Claims 25-26,
Since claim 24 A+B+C is a new matter in claim 24, so 1.25% and 1% v/v are not clearly defined of A+B+C or A+B or A+C.
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(s) 24-26 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 24 is indefinite because it is 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. The claim is directed to a method for treating a crop but the only method step is forming a spray preparation. It is unclear how merely preparing a spray formulation treats a crop in the absence of a step of applying to a crop. The amendment, adding a phrase “applying the spray formulation to the crop” to the composition of spraying formulation fails to resolve the primary indefiniteness issue because a claim for "treating a crop" encompasses much more than just spraying it. It can comprise timing of the application, environmental conditions, or the specific pest/disease being targeted. Omitting these essential parameters creates a gap that makes the claim indefinite.
Claims 25-26: are indefinite because
Claim 25 recites …spray formulation at a rate of no more than 1.25% v/v.
Claim 26 recites …spray formulation at a rate of no more than 1% v/v.
Claims 25 and 26 define 1.25% or 1% v/v of the volatility reduction adjuvant to the spray formulation.
Volatility reduction adjuvant to the spray formulation comprising a salt of volatile, a salt of nonvolatile and one or more of drift control polymer, which are not liquids. To have % v/v in water, they need to be prepared.
A salt of volatile, a salt of nonvolatile and one or more of drift control polymer of total are prepared at varied concentrations 20-40% in water w/w labeled JM19-12(A-L). (SPEC-0033).
1.25% v/v or 1% v/v of a salt of volatile, a salt of nonvolatile and one or more of drift control polymer or 1.25% v/v or 1% v/v of JM19-12A-L prepared by application in the SPEC-0033.
Claim 25-26 are indefinite since they do not define concentrations of a salt of volatile, a salt of nonvolatile and one or more of drift control polymer in water. The examples in the specification (SPEC-033) provide some % w/w in water. It is not clear that they the only concentrations to be used in % v/v in claims 25-26.
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 non-obviousness.
Claim(s) 24-47 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hemminghaus et al. (US 20220192192A1) in view of Moity et al. (US 20180255769 A1).
Claims 24, 28-31, 33-34, 36-41 and 46,
Hemminghaus et al. teach low volatility herbicidal compositions comprising at least one auxin herbicide and at least one monocarboxylic acid, or monocarboxylate thereof. The invention further relates generally to methods for preparing and using such low volatility herbicidal com
positions, including methods for controlling auxin-susceptible plant growth on agricultural lands. (Abs). In one embodiment, the monocarboxylic acid is selected from the group consisting of formic acid, acetic acid, propionic acid , and benzoic acid. In another embodiment, the monocarboxylate salt is selected from the group consisting of formate salts, acetate salts, propionate salts, and benzoate salts. (0046). In another embodiment, the herbicidal composition comprises a monocarboxylate salt having the formula R1 = C(O)OM, wherein R1 is unsubstituted C1, -C6 alkyl and M is an alkali metal salt . In another embodiment, the herbicidal composition comprises a monocarboxylate salt having the formula R1-C (O)OM , wherein R1 is unsubstituted C1 -C3 alkyl and M is an alkali metal salt selected from sodium and potassium. In another embodiment , the monocarboxylate salt is potassium acetate . In another embodiment, the monocarboxylate salt is sodium acetate. (0047).
In some embodiments, the herbicidal compositions comprise an alkali metal phosphate and an alkali metal carbonate. (0050)
In some embodiments, the herbicidal compositions comprise potassium citrate and potassium carbonate. ((0499), Table 2-26). Citric Acid and potassium hydroxide forms potassium citrate. Citric Acid / potassium citrate is non-volatile.
Dipotassium phosphate has high pH range from 8.5-9.6 at 5% solutions in water, https://www.sigmaaldrich.com/US/en/product/sial/795496
or 8.7-9.3 at 1M solutions in water: https://www.sigmaaldrich.com/US/en/product/sigma/60353
Hemminghaus et al. teach an adjuvant composition for use in the preparation of an aqueous herbicidal composition application mixture. The adjuvant composition comprising an additive selected from the group consisting of a drift reduction agent, Claim 1.
Hemminghaus et al. do not teach the polyacrylamide, guar gum, xanthan gum, or other drift control polymers.
Moity et al. teach low volatility herbicidal compositions comprising at least one auxin herbicide and at least one cationic polysaccharide derivative, (Abs) to reduced off-site movement of said auxin herbicide comprising introducing a cationic polysaccharide derivative to said diluted agrochemical spray formulation. (0021). The polysaccharide derivative loading of the
herbicidal composition will depend upon the auxin herbicide loading of the herbicidal composition, the salt form of the auxin herbicide, and the properties of any other components of the herbicidal composition, and will be an amount sufficient to reduce the volatility of the auxin
herbicide relative to a reference composition lacking the polysaccharide derivative as defined according to the invention, but otherwise having the same composition. The loading of the
polysaccharide derivative as defined according to the invention, can vary with the specific combination of auxin herbicide, optional non-auxin herbicide, and polysaccharide derivative as defined according to the invention. (0112). The polysaccharides include guar derivatives, xanthans (0037), Guar gum (0038), xanthan gum (0045).
It would have been obvious to one of skill in the art before the effective filing date of the invention to prepare a crop composition including an herbicide with reduction adjuvants comprising a volatile salt and a non-volatile salt, taught by Hemminghaus et al. and to reduce drifting by adding a polymer like a cationic polysaccharide, taught by Moity et al. since they have proven it would help to reduce off target spraying or reduce drifting.
With regard to claims 25 and 26,
Moity et al. teach polysaccharide 0.65% in Dicamba DMA aqueous solution (Table 3, 0126).
With regard to claim 27,
The vapor pressure of acetic acid at 20°C is approximately 11.6 mmHg
https://hansonchemicals.com/products/acetic-acid/
With regard to claim 32,
The vapor pressure of potassium phosphate at 20°C is approximately 0.1-0 mmHg, depending on the source and the product's concentration.
https://www.anchemsales.com/wp-content/uploads/2016/09/dipotassium-phosphate-jan-2014.pdf
With regard to claim 34,
Hemminghaus et al. teach The results reported above for the di- and tri carboxylic acids tested ( oxalic acid and succinic acid). (0505).
With regard to claims 35, 38,
Hemminghaus et al. teach potassium oxalate in Table 1-27. (0486), Table 3-1, (0504).
With regard to claim 42,
Salt of said volatile acid and said salt of said nonvolatile acid are in a weight ratio of between about 1:1. Table 2-3. (0495) or Table 3-7. (0504).
With regard to claim 43,
Salt of said volatile acid and said salt of said nonvolatile acid are in a weight ratio of between about 2:1. 2% potassium acetate + 1% ammonium sulfate. Table 3-3. (0504).
With regard to claims 44-45,
Hemminghaus et al. teach In various embodiments, the herbicidal compositions (ready-to-use, liquid concentrate, tank mix, etc.) have a pH that is equal to or higher than the acid dissociation constant ( pKa ) of the monocarboxylic acid present in the composition. For example, in certain embodiments, the herbicidal compositions comprise acetic acid (which has a pKa of about 4.8 ) and have a pH equal to or greater than about 4.8 . In the case of herbicidal compositions comprising dicamba and an effective amount of acetic acid, dicamba volatility generally decreases as composition pH increases with dicamba volatility reaching substantially non-detect able levels at a composition pH of about 5.2 as measured in a plant response study. (0094).
With regard to claims 46-47,
Hemminghaus et al. teach In one embodiment, the auxin herbicide is selected from dicamba, or a agriculturally acceptable salt or ester thereof, and 2,4-D, or an agriculturally acceptable salt of ester thereof. In another embodiment, the non-auxin herbicide is glyphosate, or an agriculturally acceptable salt thereof. (0008).
Response to Arguments
Claim Rejections Under 35 U.S.C. § 112
Claim 24,
Applicant argues that Claim 24 was allegedly indefinite for reciting a method of treating a crop while reciting only forming a spray preparation. Applicant has amended claim 24 to recite, "and applying the spray formulation to the crop." This rejection should be withdrawn as to amended claim 24.
Applicant's arguments have been fully considered and are not persuasive because their claim still mixes separate statutory classes of invention: a composition of matter versus a method of use/treatment in a single claim without clearly reciting the actual affirmative steps of how to treat the crop, rendering the claim's scope indefinite, despite the amendment. Claim 24 is still indefinite. Please see the rejection above.
Claim 25-26,
Applicant argues that Claims 25-26 were allegedly indefinite for failing to specify a parameter for a volume percentage. The claims have been amended to recite, "of the volatility reduction adjuvant to the spray formulation." Accordingly, this rejection should be withdrawn.
Applicant's arguments have been fully considered and are not persuasive since the amendment does not answer the indefinite problem. Please see the rejection above.
Claim Rejections Under 35 U.S.C. § 102
Applicant argues that claim 24 is amended to recite the subject matter of claim 48. Claim 48 was
not rejected as allegedly anticipated. Accordingly, these rejections should be withdrawn.
Applicant's arguments have been fully considered and are persuasive since claim 48 is rejected by a second prior art, so 102(a)(1) rejection of Claims 24-47 has been withdrawn in view of the amendments. The 102 rejection is modified to the 103 rejection. Please see the rejection above.
Claim Rejections Under 35 U.S.C. § 103
Applicant argues that applicant has unexpectedly discovered synergistic combinations that include a salt of a volatile acid and a salt of a non-volatile acid. The reduction of volatility of dicamba herbicide due to the inventive compositions exceeds what one of ordinary skill in the art would have expected. "'Evidence that a compound is unexpectedly superior in one of a spectrum of common properties ... can be enough to rebut a prima facie case of obviousness.
Applicant's arguments have been fully considered and are not persuasive since Claim 48 is about comprising polyacrylamide, guar gum, xanthan gum, or other drift control polymers. As explained in the rejection of amended claim 24, Moity et al. teach low volatility herbicidal compositions comprising at least one auxin herbicide and at least one cationic polysaccharide derivative, (Abs) to reduced off-site movement of said auxin herbicide comprising introducing a cationic polysaccharide derivative to said diluted agrochemical spray formulation. (0021). The polysaccharide derivative loading of the herbicidal composition will depend upon the auxin herbicide loading of the herbicidal composition, the salt form of the auxin herbicide, and the properties of any other components of the herbicidal composition, and will be an amount sufficient to reduce the volatility of the auxin herbicide relative to a reference composition lacking the polysaccharide derivative as defined according to the invention, but otherwise having the same composition. The polysaccharides include guar derivatives, xanthans (0037), Guar gum (0038), xanthan gum (0045). One of skill in the art would learn from Moity to prepare a crop composition including an herbicide with reduction adjuvants comprising a volatile salt and a non-volatile salt, taught by Hemminghaus et al. and to reduce drifting by adding a polymer like a cationic polysaccharide, taught by Moity et al. since they have proven it would help to reduce off target spraying or reduce drifting. However, Applicant argue about unexpectedly discovered synergistic combinations that include a salt of a volatile acid and a salt of a non-volatile acid does not contradict that polysaccharide derivatives like guar derivatives, xanthans, guar gum, will be an amount sufficient to reduce the volatility of the auxin herbicide, taught by Moity.
Conclusion
Applicants' 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 extension fee 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 date of this final action.
Correspondence
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NGOC-ANH THI NGUYEN whose telephone number is (571)270-0867. The examiner can normally be reached Monday - Friday 8:00 am.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert A Wax can be reached on 571-272-0623. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/NGOC-ANH THI NGUYEN/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
Prosecution Insights