DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after November 30, 2023, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt is acknowledged of Applicants’ claimed invention filed on 11/30/2023 in the matter of Application N° 18/565,656. Said documents are entered on the record. The Examiner further acknowledges the following:
Thus, claims 1-20 represent all claims currently under consideration.
The Examiner acknowledges Applicant’s amendments and remarks addressing the rejections under 35 U.S.C. 101 and 112. Upon review, these issues are considered resolved.
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 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 at the time any inventions covered therein were effectively filed 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 at the time a later invention was effectively filed 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 1-19 are rejected under 35 U.S.C. 103 as being unpatentable over Auler et al. (WO2020078874A1), in view of Lockett et al. (WO2008075065A2).
Regarding claim 1, Auler et al. teach herbicidal composition comprising ethofumesate (See Abstract), and safeners, such as mefenpyr-diethyl (as required by instant claims 2 and 15 (see page 3, paragraph 30). And are present in the ratio by weight of the constituents (i) and (ii) is in the range of form 20:1 to 1:20 (as required by instant claims 1, 4, and 5 (See page 12, paragraph 10).
Regarding claim 3, Auler et al. teach that constituents (i) ethofumesate and (ii) mefenpyr-diethyl, are the only agrochemically active chemical compounds present in composition (See page 12, paragraph 5).
Regarding claim 6, Auler et al. teach formulation auxiliaries, additives customary in crop protection (See page 11, paragraph 25).
Auler et al. teach the herbicide combinations is applied to the soil surface, the treatment is a post-emergence treatment (as required by instant claim 8, See page 13, paragraph 10). The combination can be applied to a variety of crop plants, such as cereal crops (as required by instant claim 7 (See page 13, paragraph 10).
Auler et al. teach a method for controlling harmful plants or unwanted vegetation, which comprises applying an herbicide composition to the unwanted vegetation or the area where the harmful plants or unwanted vegetation grow (as required by instant claim 9. The composition is applied post-emergence to the crop plants (as required by instant claim 10 (See pages 12-13, paragraph 30).
Auler et al. teach the application rates of the herbicide (i) ethofumesate is in the range from 700g/ha to 100g/ha (as required by instant claims 11 and16 (See page 13, paragraph 15, and Table 1).
Auler et al. teach the herbicide compositions is applied to the soil surface after emergence of the plant, the treatment is a post-emergence treatment, before BBCH growth stage. Preferred is the use in the cereal crops, (as required by instant claims 12 and 17 (See page 13, paragraphs 10 and 15, and page 14, paragraph 20).
However, Auler et al. fails to teach constituents (i) in the range of from 6:1, 4:1, and 5:2, based on the total amount of the composition and do not teach wherein the crop plants are wheat crop plants.
Lockett et al. teach a composition comprising ethofumesate in that the crop plants are wheat crop plants (as required by instant claims 13 and 18 (See Abstract). The crop plants are selected from the group of genus Triticum durum (as required by instant claims 14 and 19 (See page 2, paragraph 20).
Regarding claim 20, Lockett et al. disclose wherein some of the active ingredients may include substances as safeners, such as cloquintocet-methyl (See page 7, paragraph 20).
It would have been obvious to one of ordinary skill in the art, prior to the effective filing date of the instant application, to incorporate the composition of Auler et al., which teaches herbicidal combinations comprising ethofumesate and safeners such as mefenpyr-diethyl, wherein the ratio by weight of the constituents is disclosed in the range of 20:1 to 1:20, into the teachings of Lockett et al., which teach a composition comprising ethofumesate for use in wheat crop plants, including those of the genus Triticum durum. Although Auler et al. does not explicitly disclose a ratio of 6:1 by total weight of the composition, it would have been a matter of routine optimization for one of ordinary skill in the art to adjust the ratio within the broader range taught by Auler et al. in order to achieve predictable herbicidal effectiveness and safener compatibility in wheat crops as suggested by Lockett et al.
Response to Arguments
Applicant's arguments filed December 16, 2025 have been fully considered but they are not persuasive. Applicant argues that Auler et al. does not disclose compositions in which ethofumesate is the only herbicidally active ingredient in combination with the claimed safeners. However, Auler et al. teaches compositions comprising ethofumesate and safeners such as mefenpyr-diethyl, and does not require the presence of additional herbicides. Thus, compositions falling within the scope of claim 1 are reasonably suggested. Applicant further argues that Auler et al. does not disclose the claimed ratio range. However, Auler et al. discloses a broader ratio range (20:1 to 1:20), which encompasses the claimed range. It would have been obvious for one of ordinary skill in the art to select a workable ratio within this range through routine experimentation.
With respect to Lockett et al. applicant contends that the reference does not disclose the claimed combination. While Lockett et al. may not explicitly disclose the safener combination, it teaches the use of ethofumesate in wheat crops, thereby providing motivation to apply known ethofumesate compositions (such as those of Auler et al.) in that context.
Applicant’s arguments regarding the absence of explicit disclosure of the exact claimed combination are not persuasive because obviousness does not require express disclosure of every limitation in a single reference, but rather considers what would have been obvious in view of the combined teachings.
The combined teachings of Auler et al. and Lockett et al. render the claimed subject matter obvious. Auler et al. provides the composition and ratio range, while Lockett et al. provides application to wheat crops. The claimed invention represents no more than the predictable use of known elements according to their established functions (See KSR v. Teleflex).
Accordingly, the rejection of claims 1-20 under 35 U.S.C. 103 is maintained and made final.
Conclusion
THIS ACTION IS MADE FINAL. 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 Kimberly Barber whose telephone number is (703) 756-5302. The examiner can normally be reached on Monday through Friday from 6:30 AM to 3:30 PM EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert A. Wax, can be reached at telephone number (571) 272-0623. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KIMBERLY BARBER/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615