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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on April 7, 2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Status
Claims 1 – 9 and 12 – 17 are examined here-in.
Claim Objections
Claim 1 objected to because of the following informalities:
Claim 1 does not have subject-verb agreement, i.e. the singular “an herbicidal composition” is improperly combined with the verb “are applied”, which is plural.
Claim 1 should include the article “an” prior to “area in which the useful plants grow”.
Appropriate correction is required.
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.
Claims 1 – 9 and 12 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, regards as the invention.
The term “harmful” in claim 1 is a subjective term which renders the claim indefinite. The term “harmful” is not defined by the claim and the specification does not provide an objective standard for measuring the scope of the claim, therefore one of ordinary skill in the art would not be reasonably apprised of the scope of the invention (MPEP 2173.05(b)(IV)). Although the specification provides the example of annual and perennial mono- or dicotyledonous weeds and unwanted crop plants” (page 3 lines 7 – 8, 15 – 16, 19), this example is not a definition that provides one of ordinary skill in the art with the necessary detail to determine what constitutes a “harmful” plant.
The term “useful” in claims 1, 6, 7 is a subjective term which renders the claims indefinite. The term “useful” is not defined by the claim and the specification does not provide an objective standard for measuring the scope of the claim, therefore one of ordinary skill in the art would not be reasonably apprised of the scope of the invention (MPEP 2173.05(b)(IV)).
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 non-obviousness.
Claims 1 – 9 and 12 – 17 are rejected under 35 U.S.C. 103 as being unpatentable over Kraus (AU 2016/294401 B2).
Kraus teaches a herbicidal composition with cinmethylin and specific non-ACCase lipid synthesis inhibitors and method for its use (title, abstract).
Kraus teaches the non-ACCase lipid synthesis inhibitor may be ethofumesate (page 4 line 7, page 6 lines 12 – 17, page 7 lines 6 – 7).
Kraus teaches the ratio of cinmethylin to non-ACCase lipid synthesis inhibitor may be in the range of 1:0.5 to 1:160, or more specifically in a range from 1:2 to 1:40 (page 10 lines 12 – 15). Kraus teaches that cinmethylin can be applied at a rate from 0.1 to 2,000 g/hectare and the non-ACCase lipid synthesis inhibitor can be applied at a rate of 0.1 to 10,000 g/ha (page 72 lines 25 – 34).
Kraus teaches the composition may include a safener (page 12 lines 20 – 31). Kraus teaches that safeners prevent or reduce damage on useful plants without having detracting from the herbicidal action of the herbicides to unwanted plants (page 12 lines 22 – 27). Kraus teaches isoxadifen, cyprosulfamide, mefenpyr, and cloquintocet, among others, as suitable safeners (page 12 lines 36 – 43).
Kraus teaches that herbicides can be applied before sowing, on shoots or seedlings, pre-emergence, or post-emergence (page 12 lines 22 – 27).
Kraus teaches the composition is useful for controlling undesirable vegetation in crop plants, including maize, cotton, and soybeans (page 73 lines 11 – 38, page 74 lines 22 – 26).
Kraus teaches the composition is suitable for application on genetically modified plants (page 74 line 35 to page 75 line 6).
Kraus teaches the herbicide resistant weed species are HPPD-resistant plants (page 60 lines 14 – 24).
Kraus teaches a method for controlling undesirable vegetation by applying the composition (page 7 line 39 to page 8 line 3, page 8 lines 12 – 16).
Claims 1 – 9 and 12 – 17 are rendered prima facie obvious over the teachings of Kraus, because it is prima facie obvious to combine prior art elements according to known methods, in order to yield predictable results. In the instant case, all the claimed elements (e.g., cinmethylin, ethofumesate, safeners) were known in the prior art (e.g., herbicidal compositions) 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 yielded nothing more than predictable results (e.g., an herbicidal composition with cinmethylin, ethofumesate, and a safener) to one of ordinary skill in the art. MPEP 2143(i)(a).
Kraus’ teaching for a method to control undesirable vegetation by applying a composition comprising cinmethylin and non-ACCase lipid synthesis inhibitor ethofumesate (title, abstract, page 4 line 7, page 6 lines 12 – 17, page 7 lines 6 – 7, page 7 line 39 to page 8 line 3, page 8 lines 12 – 16) reads on instant claims 1, 2, 13, and 14.
Kraus’ teaching that the composition can be applied before sowing, on shoots or seedlings, pre-emergence, or post-emergence (page 12 lines 22 – 27) reads on instant claim 1’s recitation that the herbicidal ingredients “are applied to at least one of the harmful plants, the useful plants, plant seeds of the useful plants, and area in which the useful plants grow”.
Kraus does not require an herbicidal ingredients added to the combination of cinmethylin and ethofumesate, reading on the recitation that these herbicides “are the sole active herbicidal ingredients” as recited in claims 2 and 14.
Kraus’ teaching that the composition may include a safener (page 12 lines 20 – 31) reads on instant claims 3 and 15. A person of ordinary skill in the art would be motivated to include a safener in the composition because Kraus teaches that safeners prevent or reduce damage on useful plants without having detracting from the herbicidal action of the herbicides to unwanted plants (page 12 lines 22 – 27).
Kraus’ teaching for isoxadifen, cyprosulfamide, mefenpyr, and cloquintocet, among others, as suitable safeners (page 12 lines 36 – 43) reads on instant claims 4 and 16.
Kraus’ teaching for cinmethylin to non-ACCase lipid synthesis inhibitor ethofumesate in a ratio ranging from 1:0.5 to 1:160 (page 10 lines 12 – 15) overlaps on the instantly claimed ratio of 0.1 to 10 as recited in claims 5 and 17. The ratio of claims 5 and 17 is written as 0.1 to 10 and interpreted to be a range of 0.1 parts to 10 parts ethofumesate per 1 part cinmethylin, as described on page 3 lines 1 – 4 of the instant specification. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Kraus’ teaching that the composition is useful for controlling undesirable vegetation in crop plants, including maize, cotton, and soybeans (page 73 lines 11 – 38, page 74 lines 22 – 26) reads on instant claim 6.
Kraus’ teaching that the composition is suitable for application on genetically modified plants (page 74 line 35 to page 75 line 6) reads on instant claim 7.
Kraus’ teaching that the composition can be applied before sowing, on shoots or seedlings, pre-emergence, or post-emergence (page 12 lines 22 – 27) reads on instant claim 8.
Kraus’ teaching the herbicide resistant weed species are HPPD-resistant plants (page 60 lines 14 – 24) reads on instant claim 9.
Kraus’s teaching that cinmethylin can be applied at a rate from 0.1 to 2,000 g/hectare and the non-ACCase lipid synthesis inhibitor (i.e. ethofumesate) can be applied at a rate of 0.1 to 10,000 g/ha (page 72 lines 25 – 34) overlaps on the instantly claimed range of 200 to 500 g/ha and 100 to 250 g/ha as recited in instant claim 12. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(i).
Conclusion
All claims are rejected. No claims are allowed.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Toriana N. Vigil whose telephone number is (571)270-7549. The examiner can normally be reached Monday - Friday 9:00 a.m. - 5:00 p.m. EST.
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/TORIANA N. VIGIL/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612