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 .
Acknowledgement is made to Applicant’s claims filed 01/30/2026.
Claims 1-3, 5-8, 10-15, 17, and 18 are pending and are currently under consideration.
Claims 4, 9, and 16 are cancelled.
Rejections Maintained and Made Again in view of Applicant’s Amendments
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 17 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because they are directed to “use” claims which are not a statutory class. See MPEP 2173.05(q)(I)).
Response to Arguments
Applicant argues in the Remarks filed 01/30/2026 that the amendment to claim 17 overcomes the 101 rejection. Applicant’s argument is not found persuasive. Specifically, “use” claims are not considered a statutory class, and therefore, the rejection under 101 is maintained. It is noted that while use claims are not a statutory class, method claims are considered a statutory class.
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 17 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 17 is directed to a “use claim”, and said claim is therefore deemed to be indefinite.
Response to Arguments
Applicant argues in the Remarks filed 01/30/2026 that the amendment to claim 17 overcomes the 112 rejection. Applicant’s argument is not found persuasive. Specifically, the claim remains indefinite since one is unable to clearly establish the metes and bounds of the “use.”
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-16 and 18 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mann et al (WO 2015/094884)(IDS Reference).
Mann exemplifies a composition comprising glufosinate-ammonium (which includes both the L and D enantiomer) at 256 g/L, 2,4-D-choline salt at 195 g/L, and glyphosate at 205 g/L (see entire document, for instance, page 21, last paragraph). The composition is taught as being useful for crops such as cotton, cereals, sunflowers, and sugarcane (see entire document, for instance, page 20, first paragraph) as well as for row crops, trees, and vines (see entire document, for instance, page 16, last paragraph). The composition is taught as being useful for controlling undesirable vegetation, including broadleaf grass (see entire document, for instance, paragraph bridging pages 16 and 17). The composition further comprises the excipient ammonium sulfate liquid (see entire document, for instance, page 21, last paragraph), and can further comprise additional excipients including dyes, thickening agents, and dispersing agents (see entire document, for instance, page 15, third paragraph). The composition is taught as being able to be applied to plants or fallow ground (see entire document, for instance, claim 25). The components are taught as being able to be in the form of premixes which are combined and then applied, as such, these premixes are deemed to constitute a kit.
Response to Arguments
Applicant argues in the Remarks filed 01/30/2026 that the amendments to claims 1 and 5 overcome the rejection under 102. Applicant’s argument is not found persuasive. Specifically, the prior art composition comprises the claimed elements, and utilizes the composition for the same purpose, namely, as an herbicidal composition. With regard to the limitation that directed to a “composition consisting essentially of L-glufosinate or a salt thereof, and a choline salt of 2,4-D,” it is noted that per MPEP 2111.03 the transitional phrase “consisting essentially of” limits the scope of a claim to the specified materials or steps “and those that do not materially affect the basic and novel characteristic(s)” of the claimed invention. In re Herz, 537 F.2d 549, 551-52, 190 USPQ 461, 463 (CCPA 1976) (emphasis in original)” however, MPEP 2111.03 also states that “[f]or the purposes of searching for and applying prior art under 35 U.S.C. 102 and 103, absent a clear indication in the specification or claims of what the basic and novel characteristics actually are, “consisting essentially of” will be construed as equivalent to “comprising.”” Applicant has failed to set forth parameters for what would materially affect the basic and novel characteristics of the claimed invention, and as such, the claims are being interpreted as utilizing open language (i.e. comprising language).
Conclusion
Applicant's 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 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 TREVOR M LOVE whose telephone number is (571)270-5259. The examiner can normally be reached M-F typically 6:30-3.
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, Bethany Barham can be reached at 5712726175. 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.
/TREVOR LOVE/Primary Examiner, Art Unit 1611
Prosecution Insights