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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 24 June 2026 has been entered.
Applicant’s arguments, filed 24 June 2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
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 1-16 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.
The term “substantially inhibiting” in claim 1 is a relative term which renders the claim indefinite. The term “substantially” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is not clear what amount of inhibition is considered to be “substantially inhibiting” such that one of ordinary skill in the art would know when an inhibition rate infringes on the claimed invention. At best, p. 3, ¶ 3 of the instant Specification describes “substantially inhibiting flowering” as a majority of treated sugarcane plants do not flower. To obviate this issue, it is suggested for the claim to specifically recite a range of flowering consistent with the data in the instant Specification.
Claims 2-5, 7-9, 11-13, and 15-16 are rejected as they depend from claim 1 and does not further clarify the subject matter.
Claim 1 recites “the sugarcane flowering induction period”, which appears to be a relative term, thus rendering the claim indefinite because the scope of the claim is unclear. The period is not defined by the claim, the Specification does not provide a standard for ascertaining the requisite time of year, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is not clear what parameters are used to determine a sugarcane flowering induction period, such that one of ordinary skill in the art would know when a period of time infringes on the claimed invention. At best, p. 3, ¶ 4 of the instant Specification describes general sunlight exposure hour ranges that may be considered as a sugarcane flowering induction period. However, it is not clear how this range differs from other times of the year. Similarly, the same paragraph discloses a general period in the calendar year that may be considered as a sugarcane flowering induction period. However, such period varies depending on the date of summer solstice and hemisphere. To obviate this issue, it is suggested for claim 1 to positively recite the parameter(s) that defines a sugarcane flowering induction period.
Claims 2 and 4-15 are rejected as they depend from claim 1 and does not further clarify the subject matter.
Regarding claim 3, the phrase "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d). To obviate this issue, it is suggested for claim 3 to positively recite 11 to 13 hours.
The term “about” in claims 5, 9, and 13 is a relative term which renders the claim indefinite. The term “about” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is not clear what percentage of deviation from the recited ranges are considered to be encompassed by the term “about”, such that one of ordinary skill in the art would know when an application rate infringes on the claimed invention.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-3, 5-7, 9-11, and 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over Ligon et al. (WO 2000/018235 A1, 04/06/2000, ISR reference) (hereinafter Ligon) in view of Voglewede et al. (US 2019/0090484 A1, 03/28/2019) (hereinafter Voglewede).
Ligon discloses a method of substantially prohibiting flowering in sugarcane comprising applying a composition comprising a plant growth regulator, such as 2-chloroethylphosphonic acid, or an agriculturally acceptable salt thereof or an agriculturally acceptable ester thereof, during a period of flowering induction of the said sugarcane, such that only from about 5-30% of the treated sugarcane plants flowers (p.1, lines 22-23; p.2, lines 8-15), versus 85% flowering rate for the untreated plants (p.6, line 10). The period of induction is generally when there is sunlight on the said cane during a period of from 10-14 hours per day; the period of induction is about 45 days (p.2, lines 16-18). The composition may be applied by aerial application (p.7, line 26).
Ligon differs from the instant claims insofar as not explicitly disclosing wherein the composition comprises florpyrauxifen.
However, Voglewede discloses compositions comprising an effective amount of florpyrauxifen and florpyrauxifen-benzyl, also known as RinskorTM Active, to control unwanted growth ([0006]-[0007]), effects including causing deviations from natural development or regulation ([0011]). The compounds may be applied at an application rate of from 1 gram active ingredient per hectare (g ai/ha) to 200 g ai/ha, depending upon the degree of control required, and the timing and method of application ([0027]). the compositions can be used to control bromoxynil-tolerate crops such as sugarcane ([0053]).
Ligon discloses applying the composition to sugarcane. Accordingly, it would have been obvious to one of ordinary skill in the art to have included florpyrauxifen, or, alternatively, florpyrauxifen-benzyl, in the composition of Ligon as a known and effective compound to additionally control unwanted growth in crops such as sugarcane as taught by Voglewede. As such, the claimed amounts of florpyrauxifen (i.e. about 2 to about 20 g ai/ha) would have been obvious to one of ordinary skill in the art since they appear to overlap with the 1-200 g ai/ha taught by Voglewede as a known and effective range to apply florpyrauxifen or, alternatively, florpyrauxifen-benzyl.
Regarding 3 and 16 reciting amounts of period of sunlight, the claimed ranges (i.e. 10 to 14 hours, or 11 to 13 hours, respectively) would have been obvious to one of ordinary skill in the art since they overlap with the ranges of the prior art (i.e. 10 to 14 hours). 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(A).
Response to Arguments
Applicant mainly asserts on pp. 4-5 of the Remarked filed 24 June 2026 that the technical hurdles that one skilled in the art would know that challenge the use of florpyrauxifen as a ripener include: (1) florpyrauxifen is likely too potent and irreversible at effective doses; (2) the dose required to elicit any meaningful physiological ripening response in sugarcane may approach or exceed phytotoxic thresholds before useful sucrose accumulation is achieved; (3) florpyrauxifen would likely disturb phloem loading and source-sink partitioning in unpredictable ways; and (4) florpyrauxifen may disturb auxin signal, and risk triggering enzymatic degradation of sucrose rather than the gentle growth retardation of a ripener. Thus Applicant asserts even though the references disclose agents for sugarcane ripening, one skilled in the art would not expect florpyrauxifen to work so well given the biology.
The Examiner appreciate Applicant’s assertions but do not find them to be persuasive. Applicant has made various allegations regarding the biology of florpyrauxifen but has not provided objective evidence to support such allegations. As supported by MPEP 716.01(c), arguments presented by the Applicant cannot take the place of evidence in the record, and any affidavit or declaration which states only conclusions may have little weight when considered in light of all the evidence of record in the application.
Moreover, as evidenced by Wassell et al. (“Florpyrauxifen-benzyl: summary of analytical chemistry, residue data”, 08/29/2019) (hereinafter Wassell) (see rejection No. 4 below), it appears florpyrauxifen would be suitable for application to sugarcane in amounts within the ranges disclosed by Voglewede, and would be capable of acting as a ripener. As such, Applicant’s arguments are unpersuasive.
Regard potential evidence of unexpected results, Applicant has the burden of explaining the data in any declaration they proffer as evidence of non-obviousness. MPEP § 716.02(b)(II). Note that factually uncorroborated assertions (such as those referenced in the specification) cannot take the place of evidence in the record. See MPEP § 716.01 (c)(Il). Moreover, any differences between the claimed invention and the prior art may be expected to result in some difference in properties. The issue is whether the properties differ to such an extent that the difference is really unexpected. The burden is on applicant to establish that the results are in fact really unexpected and of statistical and practical significance. Ex parte Gelles, 22 USPQ2d 1318 (Bd. Pat. App. & Inter. 1992). See also MPEP § 716.02. Applicant does not appear to have discussed same (at least in specific detail) with respect to the putative probative value of the objective data in the experimental results. For example, it is unclear to the Examiner how the following data contained in Tables 1-4 (p. 6 et seq. of the instant Specification) speak to the alleged unexpected results:
In Table 1, at 75 DAA, RinskorTM @ 2 g ai/ha or 5 g ai/ha appear to have less 0% floral stems than the standard treatment (Ethrel® 720) or the untreated sugarcane stems. Similarly, at 90 DAA, RinskorTM @ 2, 10, 15, and 20 g ai/ha appear to have less 0% floral stems when compared to the standard treatment.
In Table 2, at 90 DAA, RinskorTM @ 2 g ai/ha appears to have less 30% floral stems and more 80% floral stems than the standard treatment.
In Table 3, at 120 DAA, RinskorTM at all concentrations appear to have less 0% floral stems than the standard treatment. At 150 DAA, only RinskorTM @ 20 g ai/ha performs comparably to the standard treatment.
In Table 4, at 90 DAA, RinskorTM @ 10 g ai/ha appears to have less 0% floral stems than the standard treatment.
Finally, assuming purely arguendo that the unexpectedness of the results has been established, the probative value of the evidence as compared to the invention as claimed must then be determined, i.e., the claims must be “commensurate in scope” with the showing. MPEP § 716.02(d). See also MPEP § 2145. Applicant must explain the “manner in which the specific compositions illustrated are considered to be commensurate in scope with the claimed invention”; see Ex parte Gelles, 22 USPQ2d 1318 (Bd. Pat. App. & Inter. 1992); see also MPEP 716.02, citing same.
Tables 1-4 of the instant specification employ specific compound in specific percentages, and even if Applicant were to show unexpected results, they would have been obtained, for example, not with the broad class of “a composition comprising florpyrauxifen or an agriculturally acceptable salt or ester thereof” generally (i.e. interpreted under the broadest reasonable interpretation as a composition comprising any florpyrauxifen, salt, or ester thereof, in any amounts), but instead with specific species of same. Note, for example, Experimental Results section on p. 4 of the instant specification uses florpyrauxifen-benzyl. Tables 1-4 demonstrate specific amounts of florpyrauxifen-benzyl, ranging from as low as 2 g ai/ha to as high as 20 g ai/ha. Applicant would need to explain how these specific species are “reasonably representative” of the more broadly claimed subject matter of the claims, even were the results persuasively demonstrated to be “in fact really unexpected and of statistical and practical significance”.
Claims 4, 8, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Ligon et al. (WO 2000/018235 A1, 04/06/2000) (hereinafter Ligon) in view of Voglewede et al. (US 2019/0090484 A1, 03/28/2019) (hereinafter Voglewede), further in view of Magalhaes (WO 2013/038269 A2, 03/21/2013).
Regarding claims 4, 8, and 12, the disclosure of Ligon and Voglewede are discussed in detail above, and differ from the instant claims insofar as not explicitly disclosing wherein the sugarcane variety comprises RB85 5035.
However, Magalhaes discloses common sugar cane cultivars with desirable trait characteristics, including drought resistance or improved quality such as enhanced sugar content; said common sugar cane cultivars including RB 85-5035 (p.13).
Ligon discloses applying the composition to sugarcane. Accordingly, it would have been obvious to one of ordinary skill in the art to have applied the composition of Ligon to RB 85-5035, since it is a known and effective desirable sugarcane cultivar/variety as taught by Magalhaes.
Response to Arguments
Applicant does not present specific arguments with regards to Ligon and Magalhaes.
Since the Examiner has discussed Ligon above, this rejection is maintained.
Claims 1-3, 5-7, 9-11, and 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over Ligon et al. (WO 2000/018235 A1, 04/06/2000) (hereinafter Ligon) in view of Wassell et al. (“Florpyrauxifen-benzyl: summary of analytical chemistry, residue data”, 08/29/2019) (hereinafter Wassell).
The disclosure of Ligon has been discussed in detail above, and differs from the instant claims insofar as not explicitly disclosing wherein the composition comprises florpyrauxifen.
However, Wassell discloses florpyrauxifen-benzyl for use on sugarcane at 5 to 21 fl. oz. per acre (0.00819 to 0.0688 lb. ai/A). Applications may be made early spring to early summer. For ripener, apply at a rate of 1 to 3 fl. oz. per acre (0.0016 to 0.0049 lb. ai/A) at late summer prior to harvest. Pre-harvest interval is 60 days. Apply at least 14 days prior to sugarcane harvest as a ripener (p. 8, last ¶).
Accordingly, it would have been obvious to one of ordinary skill in the art to have included florpyrauxifen-benzyl in the composition of Ligon since it is a known and effective ripener for use on sugarcane as taught by Wassell. "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." See MPEP 2144.06(I).
It would have been obvious to one of ordinary skill in the art to have selected an amount of florpyrauxifen from the disclosed range of 0.0016 to 0.0049 lb. ai/A, which appears to overlap the instantly claimed amounts in g ai/ha. 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). Moreover, in any case, the selection of appropriate application rate would appear to require no more than routine testing on the part of the skilled artisan, and so alternatively it would have been obvious to determine workable ranges to arrive at the claimed amounts in g ai/ha. "[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." See MPEP § 2144.05(II)(A).
Regarding 3 and 16 reciting amounts of period of sunlight, the claimed ranges (i.e. 10 to 14 hours, or 11 to 13 hours, respectively) would have been obvious to one of ordinary skill in the art since they overlap with the ranges of the prior art (i.e. 10 to 14 hours). 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(A).
Claims 4, 8, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Ligon et al. (WO 2000/018235 A1, 04/06/2000) (hereinafter Ligon) in view of in view of Wassell et al. (“Florpyrauxifen-benzyl: summary of analytical chemistry, residue data”, 08/29/2019) (hereinafter Wassell), further in view of Magalhaes (WO 2013/038269 A2, 03/21/2013).
Regarding claims 4, 8, and 12, the disclosure of Ligon and Wassell are discussed in detail above, and differ from the instant claims insofar as not explicitly disclosing wherein the sugarcane variety comprises RB85 5035.
However, Magalhaes discloses common sugar cane cultivars with desirable trait characteristics, including drought resistance or improved quality such as enhanced sugar content; said common sugar cane cultivars including RB 85-5035 (p.13).
Ligon discloses applying the composition to sugarcane. Accordingly, it would have been obvious to one of ordinary skill in the art to have applied the composition of Ligon to RB 85-5035, since it is a known and effective desirable sugarcane cultivar/variety as taught by Magalhaes.
Citation of Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Satchivi et al. (WO 2020/096926 A1, 05/14/2020) is directed to a composition comprising a synthetic auxin including aryl picolinates such as florpyrauxifen-benzyl or halauxifen, for controlling undesirable growth of vegetation in sugar cane.
Yerkes et al. (WO2014018402 A1, 01/30/2014) is directed to a composition comprising florpyrauxifen for application on sugarcane.
Tu et al. (US 2019/0116788 A1, 04/25/2019) (hereinafter Tu) discloses halauxifen mixed with plant growth regulator causes an advantageous effect on plants.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LUCY TIEN whose telephone number is (571)272-8267. The examiner can normally be reached Monday - Thursday 8:30 AM - 6:30 PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, SAHANA KAUP can be reached at (571) 272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LUCY M TIEN/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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