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 .
Election/Restrictions
Applicant's election with traverse of Group I (claims 1-5 and 8-10) in the reply filed on 12/15/2025 is acknowledged. Applicant’s species election of PolyAgro A, sodium lauryl sulfate, and xanthan gum is also acknowledged. The traversal is on the ground(s) that the International Search Authority for the national stage application found claims 1-14 to contain unity. Secondly, the Applicant argues that Groups III-IV can be considered use or manufacture process of Group I. This is not found persuasive because as provided in 37 CFR 1.475(a), where a group of inventions is claimed in a national stage application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art. As established by the prior art rejections below, the inventions lack unity as demonstrated by showing the common technical feature(s) does not “define a contribution over the prior art” “a posterior.” See MPEP 1850.
The requirement is still deemed proper and is therefore made FINAL.
Accordingly, claims 6-7 and 11-13 are withdrawn as being directed to a non-elected invention and the non-elected species are withdrawn from their corresponding claims. Claims 3-5, 7, and 11 are amended and claim 14 is canceled. Claims 1-5 and 8-10 are examined on the merits herein.
Priority
The instant application filed 09/29/2023, is a 371 filing of PCT/IL2022/050343, filed 03/31/2022, which claims foreign priority to EP21195553.9, filed 09/08/2021, and EP21166160.8, filed 03/31/2021.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 09/29/2023 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Rejections - 35 USC § 112(b)
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 10 is 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 10 recites the limitation "the hydrophilic active ingredient electrolyte". Neither claim 8 nor claim 9, from which claim 10 depends, recited “a hydrophilic active ingredient electrolyte”. As such, there is insufficient antecedent basis for this limitation in the claim.
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.
Claims 1-5 and 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over Morvan, M., et al. (US 20040170657 A1, 09/02/2004, IDS dated 09/29/2023), hereinafter Morvan, in view of Silbert, G., et al. (WO 2017098325 A2, 06/15/2017, IDS dated 09/29/2023), hereinafter Silbert, and Agbaje, H., et al. (US 6165939 A, 12/26/2000, PTO-892), hereinafter Agbaje.
Morvan discloses a dispersion comprising at least one emulsion of an organic phase in an aqueous phase, said aqueous phase comprising a soluble salt content of at least 0.5 mol/l and at least one amphiphilic block copolymer (abstract).
Regarding claims 1 and 8: The dispersion of Morvan comprises an emulsion of an organic phase in an aqueous phase (abstract; claim 1), which reads on the aqueous phase of (i) and the liquid organic phase emulsified in the aqueous phase of (ii). The organic phase of the emulsion is selected from organic compounds that are in a liquid form ([0121]). Examples of suitable organic phases include organic oils; saturated or unsaturated fatty acids; esters of said acids; etc. ([0122]). The organic phase can contain one or more active substance, or can even constitute an active substance itself ([0137]). Thus, Morvan teaches a liquid organic phase comprising a lipophilic active ingredient and the lipophilic organic solvent of (ii).
The aqueous phase comprises a soluble salt content of at least 0.5 mol/L (abstract; claim 1), wherein said soluble salts are active substances ([0107]; claim 18). Examples 2 through 4 specifically teach dispersions comprising 20% of an organic phase emulsified in an aqueous phases comprising 55% or 46.5% by weight of isopropylammonium salt of glyphosate ([0238]; [0247]; [0253]). Thus, the total emulsion of these examples comprises at least 5 w/w% of salts as recited in (iii).
The dispersion can additionally contain at least one thickening agent, for example hydrocolloids such as xanthan gum ([0157]), reading on the thickener of (iv).
The amphiphilic block copolymer of Morvan has a hydrophilic block(s)/hydrophobic block(s) mass ratio of between 40/60 and 95/5 (abstract; claim 1). The hydrophilic blocks are obtained by employing one ionic or potentially ionizable hydrophilic monomer ([0018]). Preferred hydrophilic monomers include the anionic monomer 2-acrylamido-2-methylpropanesulfonic acid or its salts (i.e., AMPS) ([0020]; [0026]-[0027]; [0048]). The copolymers are preferably diblocks ([0067]). Overall, the copolymers of Morvan read on polyanionic block copolymer surfactants comprising a hydrophobic and hydrophilic moiety as recited in (v). The content of copolymer in the dispersion is preferably between 2 and 10 wt. % relative to the organic phase ([0103]). Examples 2-4 specifically teach emulsions comprising 0.25%, 1%, or 2% of the amphiphilic diblock copolymer relative to the total emulsion. Such concentrations fall within the instnatly claimed range of the block copolymer surfactant (i.e., 0.1-15 w/w%) as recited in (v). The dispersion can contain at least one surfactant (i.e., other than the copolymer) selected from those that are soluble in the aqueous phase exhibiting a high ionic strength. Preferably, the surfactant is an anionic or nonionic surfactant ([0144]-[0145]; claim 25), thereby reading partially on the second surfactant of (v).
The “dispersion” of Morvan encompasses dispersions of several liquids that are at least partly immiscible and of solid particles (suspo-emulsions) ([0013]). The solids are dispersed in the aqueous phase ([0117]; claim 20) and are selected from active compounds ([0118]-[0019]), thereby reading on the solid active of (vi).
Regarding claim 2: The dispersion can comprise an anionic or nonionic surfactant (i.e. other than the copolymer) selected from alkylpolyglucosides ([0144]-[0146]; claims 25-26). In fact it was noticed, quite unexpectedly, that there is a synergy between alkylpolyglucoside surfactants and the copolymers when included in the dispersions of Morvan ([0148]; Ex. 5).
Regarding claim 3: As discussed above, the soluble salts in the dispersion are active substances ([0107]; claim 18). Examples 2-4 specifically teach the isopropylammonium salt of glyphosate in the aqueous phase ([0238]; [0247]; [0253]), which reads a hydrophilic active ingredient electrolyte.
Regarding claim 4: The hydrophilic monomers of the block copolymer may be anionic sulfonic acids and their salts, with 2-acrylamido-2-methylpropanesulfonic acid or its salt (i.e., AMPS) being especially preferred ([0020]; [0026]-[0027]; [0048]).
Regarding claims 9 and 10: As discussed above, the aqueous phase comprises a soluble salt content of at least 0.5 mol/L (abstract; claim 1). Examples 2-4 specifically teach dispersions comprising 20% of an organic phase emulsified in an aqueous phases comprising 55% or 46.5% by weight of isopropylammonium salt of glyphosate ([0238]; [0247]; [0253]). Given that the aqueous phase makes up around 80% of the total emulsion and the glyphosate salt comprises 55% or 46.5% of the aqueous phase, the amount of the glyphosate salt in the total emulsion should be around 44% or 37%, respectively, both of which fall within the instnatly claimed range (i.e., 5-50 w/w%). In the case that such a calculation is incorrect, it is well within the abilities of an ordinary artisan to optimize the amount of the active salt in the composition depending on the desired efficacy of the final product. As such, one of ordinary skill in the art would have arrived at the instantly claimed range of the soluble salt through no more than routine experimentation. "[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).
The teachings of Morvan differ from that of the instant invention in that Morvan does not explicitly teach the proportion of the charged monomers in the block copolymer surfactant as recited in claims 1 and 8, nor does Morvan explicitly teach a second surfactant selected from alkyl sulfates, as elected by the Applicant and recited in claims 1, 5, and 8.
Silbert discloses a polyelectrolyte-layer forming block copolymer, PolyAgro A (Ex. 1), which reads on the instantly elected copolymer surfactant of claims 1 and 8. PolyAgro A is a di-block copolymer composed of a hydrophobic block and a hydrophilic block. The stabilizing, hydrophilic, block is made of sodium 2-Acryloylamino-2- methylpropane-l-sulfonate (AMPS) monomers, which are 77% of the overall- monomers in the polymer. The other 23% of the monomers belongs to the anchor, hydrophobic, block which is made of ethyl acrylate monomers. The polyelectrolyte-layer forming block copolymer of Silbert (i.e., PolyAgro A) serves as a dispersant or emulsifier that absorbs onto the surface of active ingredient particles in a dispersion to increase stability (p. 5, lines 1-10). Use of the block copolymers also stabilize, e.g. prevents or delays settlement of, the particles of compounds in a high salt environment (p. 27, lines 24-30; Example 3). The composition to be stabilized may be an emulsion or a suspo-emulsion, specifically an oil in water emulsion (p.18, lines 23-31). The concentration of the block copolymer in the composition is 0.2-3% w/w (p. 35, lines 9-11; claim 36), which falls within the range of claims 1 and 8 (i.e., 0.1-15 w/w%).
Agbaje discloses the anionic surfactant sodium lauryl sulfate as an emulsion stabilizer (col. 15, lines 9-13), which reads on the second surfactant of claims 1, 5, and 8. Sodium lauryl sulfate can be present in a concentration based on the composition as a whole of zero to about 5% by weight (col. 15, lines 11-17), which overlaps with the amount of the second surfactant as recited in claims 1 and 8 (i.e., 0.1-15 w/w%). Specifically, sodium lauryl sulfate, is used as a stabilizer in herbicidal suspoemulsions also comprising alkyl polyglucoside surfactants and high amounts of glyphosate isopropylammonium salt as an active (Ex. 3; Ex. 6).
Regarding the block copolymer surfactant of claim 1 and 8, it would have been prima facie obvious to use the PolyAgro A of Silbert in the dispersion of Morvan since PolyAgro A is a known and routine block copolymer emulsifier in the art as taught by Silbert. One of ordinary skill in the art could have substituted the block copolymer emulsifier of Morvan with the PolyAgro A emulsifier of Stilbert according to known methods to predictably yield a stable agrochemical dispersion. It would have been further obvious to incorporate the PolyAgro A at the amount taught by Morvan (i.e., 0.25-2% by weight) or Silbert (i.e., 0.2-3 w/w%) since these are known and effective amounts at which to use an amphiphilic block copolymer to stabilize an oil in water emulsion. One of ordinary skill in the art would have had a reasonable expectation of success in using the PolyAgro A of Morvan as the amphiphilic block copolymer in the dispersion of Morvan since PolyAgro A is also an amphiphilic block copolymer which can stabilize oil in water suspoemulsions exposed to high salt concentrations, such as those taught by Morvan. Additionally, Morvan teaches diblock copolymers comprising AMPS as the hydrophilic monomer and ethyl acrylate as the hydrophobic monomer in embodiments of the invention, thereby encompassing the structure of PolyAgro A which is a diblock of AMPS and ethyl acetate.
Regarding the second surfactant of claim 1 and 8, it would have been prima facie obvious to add in the sodium lauryl sulfate of Agbaje into the dispersion of Morvan since sodium lauryl sulfate is a known and effective emulsion stabilizer in the art. One of ordinary skill in the art would have been motivated to add sodium lauryl sulfate into the dispersion of Morvan since it acts as an emulsion stabilizer for herbicidal suspoemulsions as taught by Agbaje. One would have expected the addition of sodium lauryl sulfate to improve stability in the dispersion of Morvan by the same mechanism as in the suspoemulsion of Agbage. It would have been prima facie obvious to incorporate sodium lauryl sulfate at an amount of up to about 5% by weight based on the total composition, since such a concentration is known and effective in the art as taught by Agbaje. Specifically, such a concentration is known and effective for improving the stability of a herbicidal suspoemulsion. 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. Additionally, stabilization is considered a results effective parameter. Thus, one of ordinary skill in the art would have been motivated to optimize the amount of sodium lauryl sulfate in the combined composition until a desired stability is reached. The optimization of a result effective parameter is considered within the skill of the artisan. See, In re Boesch and Slaney (CCPA) 204 USPQ 215. This is what research chemists do, optimization of result-effective variables through routine experimentation (MPEP 2144.05 IIA and B).
One of ordinary skill in the art would have had a reasonable expectation of success in adding sodium lauryl sulfate at the above concentration into the dispersion of Morvan since Morvan welcomes the addition of an additional anionic surfactant other than the block copolymer. Additionally, Agbaje teaches that sodium lauryl sulfate is used in herbicidal suspoemulsions comprising alkyl polyglucosides and high amounts of glyphosate isopropylammonium salt, similar to the dispersions of Morvan.
As such, the prior art teaches all the components of the composition as claimed with amounts within or overlapping the instantly claimed ranges. Therefore, all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
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.
1. Claims 1-5 and 8-10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 12, 37, and 67 of U.S. Patent No. 11,533,910 in view of Morvan and Agbaje. The Obviousness Double Patenting rejection is appropriate because while the conflicting claims are not identical, the examined claims are not patentably distinct from the reference claims and would have been obvious over the reference claims in view of Morvan and Agbaje.
Conflicting claim 1 recites an agricultural material composition comprising: (i) particles of at least one agricultural material compound, which reads on the instantly claimed active of (ii) or the active of (vi); and (ii) a dispersant system comprising a polyelectrolyte layer- forming block copolymer, wherein the block copolymer comprises (A) a hydrophobic anchoring moiety and (B) at least one hydrophilic charged stabilizing moiety comprising at least one charged monomer, wherein the at least one charged monomer is an anionic monomer having a sulfonate group, and wherein at least 60% by weight of the hydrophilic charged stabilizing moiety is charged monomers, thereby reading on the first surfactant of (v). The weight percentage of the hydrophilic charged stabilizing moiety is 65-90% of the total weight of the block copolymer and the concentration of the block copolymer in the composition is 0.2-3% w/w (conflicting claims 37 and 67), both of which further read on the first surfactant of (v). The composition is an oil in water emulsion, b) the composition is a suspension concentrate, c) the composition is granulated (conflicting claim 12), which reads on the instantly claimed suspoemulsion or emulsion of claims 1 and 8, which would necessarily comprise the aqueous and organic phase of (i) and (ii).
The conflicting claims differ from the instant claims in that they do not explicitly recite the salt of (iii), the thickener of (iv), nor the second surfactant of (v), as recited in claims 1 and 8.
Morvan discloses a dispersion comprising at least one emulsion of an organic phase in an aqueous phase, said aqueous phase comprising a soluble salt content of at least 0.5 mol/l and at least one amphiphilic block copolymer (abstract). Said soluble salts are active substances ([0107]; claim 18). Examples 2 through 4 specifically teach dispersions comprising 20% of an organic phase emulsified in an aqueous phases comprising 55% or 46.5% by weight of isopropylammonium salt of glyphosate ([0238]; [0247]; [0253]). Thus, the total emulsion of these examples comprises at least 5 w/w% of salts as recited in (iii). The dispersion can additionally contain at least one thickening agent, for example hydrocolloids such as xanthan gum ([0157]), reading on the thickener of (iv). Morvan also teaches an amphiphilic block copolymer similar to that of the conflicting claims (abstract; [0020]; [0026]-[0027]; [0048]).
Agbaje discloses the anionic surfactant sodium lauryl sulfate as an emulsion stabilizer (col. 15, lines 9-13), which reads on the second surfactant of (v). Sodium lauryl sulfate can be present in a concentration based on the composition as a whole of zero to about 5% by weight (col. 15, lines 11-17), which overlaps with the amount of the second surfactant (i.e., 0.1-15 w/w%). Specifically, sodium lauryl sulfate, is used as a stabilizer in herbicidal suspoemulsions with high amounts of glyphosate isopropylammonium salt as an active (Ex. 3; Ex. 6).
It would have therefore been prima facie obvious to combine the salt and thickener of Morvan and the sodium lauryl sulfate of Agbaje into the composition of the conflicting claims since the conflicting claims, Morvan, and Agbaje teach all the components of the composition as claimed with amounts within or overlapping the claimed ranges. Therefore, all of the instantly claimed elements were known and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Claims 1-5 and 8-10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 12, 27, 37, and 69 of copending Application No. 17/946,610 in view of Morvan and Agbaje. The Obviousness Double Patenting rejection is appropriate because while the conflicting claims are not identical, the examined claims are not patentably distinct from the reference claims and would have been obvious over the reference claims in view of Morvan and Agbaje.
Copending claim 1 recites an agricultural material composition comprising: (i) particles of at least one agricultural material compound, which reads on the instantly claimed active of (ii) or the active of (vi); (ii) a dispersant system comprising a polyelectrolyte- layer forming block copolymer, wherein the block copolymer comprises (A) a hydrophobic anchoring moiety and (B) at least one hydrophilic charged stabilizing moiety comprising at least one charged monomer, wherein the at least one charged monomer is an anionic monomer, which reads on the first surfactant of (v). At least one hydrophilic charged stabilizing moiety is a hydrophilic block copolymer and at least 60% by weight of monomers in the hydrophilic stabilizing moiety are charged monomers (copending claim 27), which further reads on (v). The weight percentage of the stabilizing moiety is 65-90% of the total weight of the block copolymer and the concentration of the block copolymer in the composition is 0.2-3% w/w (copending claim 37), both of which also reads on (v). The composition is stable in a high salt environment (copending claim 69). The composition is an oil in water emulsion, b) the composition is a suspension concentrate, c) the composition is granulated (copending claim 12), which reads on the instantly claimed suspoemulsion or emulsion of claims 1 and 8, which would necessarily comprise the aqueous and organic phase of (i) and (ii).
The copendig claims differ from the instant claims in that they do not explicitly recite the salt of (iii), the thickener of (iv), nor the second surfactant of (v).
Morvan discloses a dispersion comprising at least one emulsion of an organic phase in an aqueous phase, said aqueous phase comprising a soluble salt content of at least 0.5 mol/l and at least one amphiphilic block copolymer (abstract). Said soluble salts are active substances ([0107]; claim 18). Examples 2 through 4 specifically teach dispersions comprising 20% of an organic phase emulsified in an aqueous phases comprising 55% or 46.5% by weight of isopropylammonium salt of glyphosate ([0238]; [0247]; [0253]). Thus, the total emulsion of these examples comprises at least 5 w/w% of salts as recited in (iii). The dispersion can additionally contain at least one thickening agent, for example hydrocolloids such as xanthan gum ([0157]), reading on the thickener of (iv). Morvan also teaches an amphiphilic block copolymer similar to that of the conflicting claims (abstract; [0020]; [0026]-[0027]; [0048]).
Agbaje discloses the anionic surfactant sodium lauryl sulfate as an emulsion stabilizer (col. 15, lines 9-13), which reads on the second surfactant of (v). Sodium lauryl sulfate can be present in a concentration based on the composition as a whole of zero to about 5% by weight (col. 15, lines 11-17), which overlaps with the amount of the second surfactant (i.e., 0.1-15 w/w%). Specifically, sodium lauryl sulfate, is used as a stabilizer in herbicidal suspoemulsions with high amounts of glyphosate isopropylammonium salt as an active (Ex. 3; Ex. 6).
It would have therefore been prima facie obvious to combine the salt and thickener of Morvan and the sodium lauryl sulfate of Agbaje into the composition of the copending claims since the copending claims, Morvan, and Agbaje teach all the components of the composition as claimed with amounts within or overlapping the claimed ranges. Therefore, all of the instantly claimed elements were known and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-5 and 8-10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 18/719,973 in view of Morvan and Agbaje. The Obviousness Double Patenting rejection is appropriate because while the conflicting claims are not identical, the examined claims are not patentably distinct from the reference claims and would have been obvious over the reference claims in view of Morvan and Agbaje.
Copending claim 1 recite a suspoemulsion composition comprising (i) a continuous liquid aqueous phase, which reads on instantly claimed (i); (ii) a liquid organic phase emulsified in the continuous aqueous phase, the liquid organic phase comprising - a water-insoluble organic solvent in a concentration between 1 w/w% and 50 w/w%; and - a First Active Ingredient that is solubilized in the organic phase, thereby reading on instantly claimed (ii); (iii) a Second Active Ingredient that is solid and is suspended in the continuous aqueous phase, which reads on instantly claimed (vi) ;(iv) a polymeric surfactant in a concentration of at least 0.5 w/w%, with respect to the total weight of the suspoemulsion; and (v) between 0.1 and 15 w/w%, with respect to the total weight of the suspoemulsion, of a polyanionic block copolymer surfactant comprising a hydrophobic moiety and a hydrophilic moiety, wherein at least 60 w/w% of the hydrophilic moiety comprises charged monomers and wherein the weight percentage of the charged monomers is at least 35 w/w% with respect to the total weight of the polyanionic block copolymer surfactant, which reads on the first surfactant of instantly claimed (v).
The copending claims differ from the instantly claimed invention in that they do not explicitly recite the salts of (iii), the thickener of (iv), nor an alkyl sulphate as the second surfactant of (v) as recited in claims 1 and 8.
Morvan discloses a dispersion comprising at least one emulsion of an organic phase in an aqueous phase, said aqueous phase comprising a soluble salt content of at least 0.5 mol/l and at least one amphiphilic block copolymer (abstract). Said soluble salts are active substances ([0107]; claim 18). Examples 2 through 4 specifically teach dispersions comprising 20% of an organic phase emulsified in an aqueous phases comprising 55% or 46.5% by weight of isopropylammonium salt of glyphosate ([0238]; [0247]; [0253]). Thus, the total emulsion of these examples comprises at least 5 w/w% of salts as recited in (iii). The dispersion can additionally contain at least one thickening agent, for example hydrocolloids such as xanthan gum ([0157]), reading on the thickener of (iv). Morvan also teaches an amphiphilic block copolymer similar to that of the conflicting claims (abstract; [0020]; [0026]-[0027]; [0048]).
Agbaje discloses the anionic surfactant sodium lauryl sulfate as an emulsion stabilizer (col. 15, lines 9-13), which reads on the second surfactant of (v). Sodium lauryl sulfate can be present in a concentration based on the composition as a whole of zero to about 5% by weight (col. 15, lines 11-17), which overlaps with the amount of the second surfactant (i.e., 0.1-15 w/w%). Specifically, sodium lauryl sulfate, is used as a stabilizer in herbicidal suspoemulsions with high amounts of glyphosate isopropylammonium salt as an active (Ex. 3; Ex. 6).
It would have therefore been prima facie obvious to combine the salt and thickener of Morvan and the sodium lauryl sulfate of Agbaje into the composition of the copending claims since the copending claims, Morvan, and Agbaje teach all the components of the composition as claimed with amounts within or overlapping the claimed ranges. Therefore, all of the instantly claimed elements were known and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUSANNAH S ARMSTRONG whose telephone number is (571)272-0112. The examiner can normally be reached Mon-Fri 7:30-5 (Flex).
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/SUSANNAH S ARMSTRONG/Examiner, Art Unit 1616
/Mina Haghighatian/Primary Examiner, Art Unit 1616