DETAILED ACTION
Status of Application
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1-10 are included in the prosecution.
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 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Dalley et al. (Herbicides as Ripeners for Sugarcane, Weed Science 2010 58:329–333) hereinafter Dalley in view of Puri (US20200095202A1).
Regarding claims 1-10, Dalley is drawn to chemical ripening of sugarcane is an important component to profitable sugar production in the United States as well as other sugarcane industries throughout the world. Research on the application of chemicals, mostly of herbicide origin, to enhance sucrose accumulation (ripening) or limit flowering to conserve stored sucrose has been conducted for more than 60 yr. The only sugarcane ripener currently registered for use in the United States is glyphosate applied before harvest. The herbicide fluazifop is used as the primary ripener of sugarcane in South Africa. The herbicides glyphosate, fluazifop, and sulfometuron-methyl and the growth regulators ethephon and trinexapac ethyl are registered for use in Brazil. There is a continuing need to evaluate sugarcane ripeners to increase the utility of currently registered ripeners and to find additional ripeners for use by sugarcane industries. The need for alternatives to glyphosate is especially critical before a glyphosate-tolerant sugarcane can be utilized to improve control of problematic weeds (abstract).
Dalley discloses Over the years, more than 100 different chemicals have been tested for their potential to ripen sugarcane. Many of the chemicals are tested for their ability to enhance sucrose concentration in sugarcane are herbicides, whereas others are nutrients or hormonal plant growth regulators (pg. 329-330).
Dalley does not explicitly disclose wherein the herbicide is florpyrauxifen.
However, Puri is drawn to a mixture comprising (a) a compound of Formula I and salts thereof wherein A1, A2, A3, R1, B1, B2 and B3 are defined in the disclosure, and (b) 2-pyridinecarboxylic acid, 4-amino-3-chloro-6-(4-chloro-2-fluoro-3-methoxyphenyl)-5-fluoro-, phenylmethyl ester (i.e. florpyrauxifen-benzyl). Also disclosed is a composition comprising the mixture. Also disclosed is a method of applying the mixture to vegetation comprising contacting the vegetation or its environment with an effective amount of the mixture of the invention (abstract).
Puri discloses Florpyrauxifen-benzyl is commercially available as, for example, Loyant™ herbicide with Rinskor™ active (Dow AgroSciences). Florpyrauxifen-benzyl contains a nitrogen atom with a free pair of electrons capable of protonation and forming salts with acids. Florpyrauxifen-benzyl is known to mimic the plant growth hormone auxin, thus causing uncontrolled and disorganized growth [0036].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the teachings of Dalley wherein the herbicide is Florpyrauxifen, as previously disclosed by Puri, and arrive at the instant invention.
One of ordinary skill in the art would have been motivated to do so because Dalley and Puri are both in the field of chemicals that manipulate plant growth, with Dalley specifically teaching herbicides as ripeners for sugarcane (abstract), and Puri teaching that the herbicide Florpyrauxifen-benzyl is known to mimic the plant growth hormone auxin, thus causing uncontrolled and disorganized growth [0036]. Further, one having ordinary still in the art would reasonably expect success in combining prior art elements according to known methods to yield predictable results, see MPEP 2141.
The Supreme Court has acknowledged:
When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation... 103 likely bars its patentability...if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond that person’s skill. A court must ask whether the improvement is more than the predictable use of prior-art elements according to their established functions......the combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results (see KSR International Co. v. Teleflex Inc., 82 USPQ2d 1385 U.S. 2007) (emphasis added).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to QUANGLONG N TRUONG whose telephone number is (571)270-0719. The examiner can normally be reached on 8:00am-5:00pm.
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/QUANGLONG N TRUONG/Examiner, Art Unit 1615
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