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 .
Claims 1-20 have been presented for examination on the merits.
Information Disclosure Statement
The Application contains no IDS.
Claim Objection
Claim 20 is objected because it capitalizes simple terms such as Hybrid and Bermudagrass.
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 20 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 20 recites 1-the broad recitation hybrid bermudagrass, and the claim also recites C. dactylon x C. transvaalensis which is the narrower statement of the range/limitation; 2- the broad recitation bermudagrass, and the claim also recites Cynodon spp. L. C. Rich which is the narrower statement of the range/limitation; 3- the broad recitation zoysiagrass, and the claim also recites Zoysia spp. Wild. which is the narrower statement of the range/limitation; 4- the broad recitation St. Augustine grass, and the claim also recites Stenotaphrum secundatum Walt Kuntze which is the narrower statement of the range/limitation; 5- the broad recitation centipedegrass, and the claim also recites Eremochloa ophiuroides Munro Hack. which is the narrower statement of the range/limitation; 6- the broad recitation buffalo grass, and the claim also recites Buchloe dactyloids (Nutt.) Engelm.) which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim 20 is also indefinite for reciting limitations inside parenthesis. Limitations inside a parenthesis are not considered part of the claim.
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.
Claims 1, 2, 17-20 are rejected under 35 U.S.C. 103 as being
unpatentable over Celsius® WG Product Label (2021, Celsius® WG Label).
Applicant's claims
Independent claim 1 is drawn to a method for controlling Poa annua in a stand of warm season turfgrass, the method comprising: contacting a stand of warm season turfgrass comprising Poa annua with an herbicidally effective amount of thiencarbazone-methyl, wherein the contacting occurs during an early post-emergence period of Poa annua.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Regarding claims 1, 2, 17, 18, and 20, Celsius® WG Label teaches the active
ingredients are thiencarbazone-methyl, iodosulfuron-methyl-sodium, and dicamba (page
1, Active Ingredients). Celsius® WG Label teaches Celsius WG is an herbicide for the
postemergence control of annual and perennial broadleaf weeds and grasses in warm-season turf types (St. Augustinegrass, Bermudagrass, Centipedegrass, Zoysiagrass, and Buffalograss (page 1; page 4-5, Turf Tolerance).
Celsius® WG Label teaches control of weeds after they have germinated
(postemergence) and also has some residual activity that prevents new weed
germination, depending on the specific weed. Celsius® WG Label is intended for foliar
application by licensed commercial applicators to established turf (page 4, Produce
Uses).
Celsius® WG Label teaches weed control is more rapid when soil temperatures
are above 65 degrees (page 4, Symptoms).
Celsius® WG Label teaches for resistance management, adopt an integrated
weed-management program for herbicide use that includes scouting and uses historical
information related to herbicide use, and that considers mechanical control methods,
cultural (e.g., timing to favor the turf and not the weeds) (page 4, Weed Resistance
Management).
Regarding claim 17, Celsius® WG Label teaches this product may be applied at
three different rates depending on weeds to be controlled. For broadcast applications,
use a minimum of 10 gallons of water per acre (page 6, Application). Celsius® WG
Label teaches a zone application is defined as a broadcast application made to a
defined area (less than 10,000 sq ft acre). Add the specified product rate of 0.057-0.117
OZ (1.6-3.2 g) to 1-gallon water. One gallon of spray solution will treat up to 1,000 sq ft
(page 6, Zone). Spot applications are defined as directed applications made to control
one or several weeds in a turfgrass situation with a backpack or hand-held sprayer. For
spot applications, spray to wet (page 6, Spot).
Celsius® WG Label teaches Celsius® WG may be applied to bermudagrass up
to 60 days prior to seeding without a significant reduction in stand where the soil is
disturbed at planting. For newly established stands, do not apply this product for at least
4 weeks after emergence (page 7, Seeding and Sprigging Intervals).
Celsius® WG Label teaches rates for specific weeds are found in the Weeds
Controlled Tables below.
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Footnotes:
The single maximum application rate of 4.9 02 of product per acre correlates to 0.027 lb thiericarbazone-methy 0.006 lb, iodosuffuron-methyl-sodium, and 0.18 lb dicamba per acre. The maximum annual application rate of 7.4 OZ of product per acre per year correlates to 0.04 Ib thiencarbazone-methyl 0.009 lb lodosufuron-methvl-sodium and 0.27 lb dicamba per acre (See page 8).
Regarding claim 19, the single maximum application of 0.027 Ib/acre of
thiencarbazone-methyl is 30.26 grams/hectare of thiencarbazone-methyl and the maximum annual application of 0.04 Ib/acre of thiencarbazone-methyl is 44.84 grams/hectare of thiencarbazone-methyl (page 8, Use Rates for Weed Control, Broadcast Application).
Regarding claims 1, 2, 17-20 Celsius® WG Label teaches control of annual bluegrass (Poa annua) (page 10).
Regarding the warm season turfgrass species claimed in claim 20, Celsius® WG Label teaches Celsius® WG is used to control weeds in Bermudagrass, Zoysiagrass, and Centipedegrass.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Celsius® WG Label does not anticipate the claims because it does not specifically disclose examples wherein thiencarbazone-methyl controls warm season turfgrass comprising Poa annua or examples of applying a liquid solution.
Finding a Prima Facie Obviousness Rationale and Motivation
(MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to use the teachings of Celsius® WG Label and contact a stand of warm season turfgrass comprising Poa annua. One of ordinary skill in the art would have been motivated to use Celsius® WG to contact a stand of warm season turfgrass comprising Poa annua with an herbicidally effective amount of thiencarbazone-methyl because Celsius® WG Herbicide Label teaches Celsius® WG is a herbicide for the postemergence control of annual and perennial broadleaf weeds and grasses in warm-season turf types, such as Bermudagrass, Centipedegrass, and Zoysiagrass. The Celsius® WG Herbicide Label further teaches Celsius® WG is applied to Bermudagrass up to 60 days prior to seeding without a significant reduction in stand where the soil is disturbed at planting and for newly established stands, Celsius® WG is applied at least 4 weeks after emergence. Based on these teachings, it would have been obvious to one of ordinary skill in the art that Celsius® WG, which contains thiencarbazone-methyl, is used in a stand of warm season turfgrass comprising Poa annua, with a reasonable expectation of success.
Regarding applying a liquid solution, one of ordinary skill in the art would have
been motivated to look to the herbicide label to determine application methods and
amounts. Celsius® WG Label teaches this product may be applied at three different
rates depending on weeds to be controlled. For broadcast applications, use a minimum
of 10 gallons of water per acre. Celsius® WG Label teaches a zone application is
defined as a broadcast application made to a defined area (less than 10,000 sq ft acre).
Add the specified product rate of 0.057-0.117 OZ (1.6-3.2 g) to 1-gallon water. One
gallon of spray solution will treat up to 1,000 sq ft. Spot applications are defined as
directed applications made to control one or several weeds in a turfgrass situation with
a backpack or hand-held sprayer. For spot applications, spray to wet. Based on these
directions one of ordinary skill in the art would find it obvious that these application
methods use liquid solutions, without evidence to the contrary.
Based on the same directions to refer to the Herbicide label for directions, one of
ordinary skill in the art would have been motivated to refer to the Herbicide label to
determine the single and total application rates. The Celsius® WG Label teaches the
single maximum application of 0.027 Ib/acre of thiencarbazone-methyl is 30.26
grams/hectare of thiencarbazone-methyl. Celsius® WG Label further teaches the
maximum annual application of 0.04 Ib/acre of thiencarbazone-methyl is 44.84
grams/hectare of thiencarbazone-methyl. Based on these teachings one of ordinary skill
in the art would have been motivated to use these application rates in the
recommendations for the early postemergence suppression of Poa annua with a
reasonable expectation of success.
Therefore, the claimed invention as a whole would have been prima facie
obvious to one of ordinary skill in the art at the time the invention was made.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Celsius® WG Product Label (2021, Celsius® WG Label) as applied to claim 1 above, and further in view of VARROTM herbicide by BAYER as evidenced by Phiepho et al (Journal of Plant Diseases and Protection).
Applicant's claim 3
Claim 3 is drawn to a method for controlling Poa annua in a stand of warm season turfgrass, the method comprising: contacting a stand of warm season turfgrass
comprising Poa annua with an herbicidally effective amount of thiencarbazone-methyl,
wherein the contacting occurs during an early post-emergence period of Poa annua. And wherein contacting comprises contacting the stand of warm season turfgrass
and/or the Poa annua with a single application of thiencarbazone-methyl applied during
the early post-emergence period, the single application effective to achieve an Abbott's
percentage reduction of at least 80% for Poa annua in the stand of warm season
turfgrass in the absence of an application during the early post-emergence period of any
other herbicidal active ingredient effective for the control of Poa annua in warm season
turfgrass.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
The teachings of Celsius® WG Product Label with respect to the 35 U.S.C.
103(a) rejection is hereby incorporated and are therefore applied in the instant rejection
as discussed above.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Celsius® WG Product Label do not specifically teach contacting the stand of
warm season turfgrass and/or the Poa annua with a single application of
thiencarbazone-methyl applied during the early post-emergence period, the single
application effective to achieve an Abbott's percentage reduction of at least 80% for Poa
annua in the stand of warm season turfgrass in the absence of an application during the
early post-emergence period of any other herbicidal active ingredient effective for the
control of Poa annua in warm season turfgrass. It is for this reason the VARROTM as evidenced by Piepho et al are added as a secondary reference.
VARROTM herbicide by BAYER discloses an herbicidal composition comprising thiencarbazone-methyl as the only active agent and wherein the formulation is a post-emergent control of certain grasses and weeds (See pages 1 and 4-5).
As evidenced by
Phiepho et al. teach the American entomologist Walter Sidney Abbott proposed
an equation for assessing efficacy, and it is still widely used today for analyzing
controlled experiments in crop protection and phytomedicine (page 1, Abstract).
Phiepho et al. teach that Abbott's formula has subsequently been applied in many
publications, not only in entomology, but also in weed science (page 1, col. 2,
paragraph 1).
Finding a Prima Facie Obviousness Rationale and Motivation
(MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of invention to have combined the teachings of VARROTM herbicide as evidenced by Phiepho et al with that of Celsius ® WG Label to arrive at the claimed invention. One of ordinary skill in the art would have been motivated to combine the teachings of Celsius® WG Label with that of VARROTM herbicide as evidenced by the Phiepho et al because Celsius® WG Herbicide Label teaches contacting a composition comprising thiencarbazone-methyl, iodosulfuron-methyl-sodium and dicamba as an effective post emergent treatment for annual grasses including Poa annua. VARROTM herbicide discloses a composition comprising thiencarbazone-methyl alone as an effective post emergent treatment for grasses. Thus, one of ordinary skill in the art would have been motivated to have incorporated VARROTM herbicide’s teachings on using one active agent for the effective treatment of post emergent grasses such as Poa annua into the teachings of Celsius® WG Label with a reasonable expectation of success.
Additionally, one of ordinary skill in the art would have been motivated to refer to the Celsius® WG Label to determine and use the single application rates taught
by The Celsius® WG Label in early postemergence control of Poa annua.
Likewise, one of ordinary skill in the art would have been motivated to use
known methods of determining the efficacy of Celsius® WG in the field. One of ordinary
skill in the art would have looked to Abbott's method that is widely used to analyze
controlled experiments in weed science with a reasonable expectation of success to
determine the efficacy of the Celsius® WG, as a person with ordinary skill has good
reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6]
KSR International CO. V. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Regarding the limitation of the single application effective to achieve an Abbott's
percentage reduction of at least 80% for Poa annua in the stand of warm season
turfgrass in the absence of an application during the early post-emergence period of any
other herbicidal active ingredient effective for the control of Poa annua in warm season,
one of ordinary skill in the art would have been motivated to use optimization and
experimentation to determine the efficacy rate for weed control. The Celsius® WG
Herbicide Label teaches that Celsius® WG is effective in postemergence suppression of
Poa annua. It would have been obvious to one of ordinary skill in the art to use known
methods and experimentation to reach a weed control level of 80% of Poa annua to
optimize the control of Poa annua in warm season turfgrass. The adjustment of
particular conventional working is deemed merely a matter of judicious selection and
routine optimization which is well within the purview of the skilled artisan.
Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize weed control. Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Claims 4-16 are rejected under 35 U.S.C. 103 as being unpatentable over
Celsius® WG Product Label (2021, Celsius® WG Label) as applied to claims 1-2 and 17-20 above, and further in view of Taylor et al. Publication (2021, Scientific
Reports, Taylor et al.).
Applicant's claims
Applicant claims a method for controlling Poa annua in a stand of warm season
turfgrass, the method comprising: contacting a stand of warm season turfgrass
comprising Poa annua with an herbicidally effective amount of thiencarbazone-methyl,
wherein the contacting occurs during an early post-emergence period of Poa annua.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
The teachings of Celsius® WG Product Label with respect to the 35 U.S.C.
103(a) rejection is hereby incorporated and are therefore applied in the instant rejection
as discussed above.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Celsius® WG Product Label does not specifically teach the early post emergence
period comprises the period of time beginning when the seven day mean soil
temperature below the warm season turfgrass falls below about 18.9 degrees Celsius
following the summer solstice, or during the autumn, and ending ten weeks later, as
claimed in claims 4 and 5; the seven day mean air temperature is determined based on
a measurement of the air temperature substantially proximal to the stand of warm
season turfgrass during the autumn or following the summer solstice, and ending ten
weeks later as claimed in claims 5 and 6; the method steps of claims 7, 8, 9, 10, 11, 12,
13, 14, 15, or 16 of varying steps of determining, monitoring, predicting and contacting
the stand of warm season turfgrass comprising Poa annua with an herbicidally effective
amount of thiencarbazone-methyl, wherein the contacting occurs during the period of
time beginning at the predicted time of first emergence of Poa annua and ending ten
weeks later. It is for this reason the Taylor et al. Publication is added as a secondary
reference.
Taylor et al. teach in the study Poa annua emergence was monitored in hybrid
bermudagrass (cv. 'Tifway') maintained at 1.5 cm with a reel mower during periods of
active growth. This research site had a natural history of herbicide susceptible P. annua
infestation (page 2, Yearly cumulative emergence, paragraph 1). Taylor et al. teach
within each replication; one plot was maintained as bare soil while the other was
maintained as a hybrid Bermuda grass. These two conditions were chosen to facilitate
collection of emergence data over the widest span of turfgrass canopy cover. Each year
P. annua emergence was assessed on a weekly basis from January 1 through May 31,
biweekly from June 1 through August 31, and weekly from September 1 to December
31 (page 2, Yearly cumulative emergence, paragraph 2). Taylor et al. teach
environmental monitoring devices were installed in each plot to collect soil temperature
(5cm depth), air temperature, soil moisture, and daily light integral data on 15-min
intervals for the duration of the experiment. Meteorological data within a 20-m radius of
plots were also collected from publicly available sources including the National Oceanic
& Atmospheric Administration (NOAA), National Climate Reference Network, and the
European Space Agency (ESA). Using data from auxiliary sources along with those
captured by in-ground sensors reduced the risk of point sample information not
accurately representing actual variable averages such that inferences could be made
about P. annua across a wider scale than the immediate area around the in-ground
sensor (page 2, Yearly cumulative emergence, paragraph 3).
Taylor et al. teach to better understand factors triggering P. annua in autumn,
early-season and cooling degree day accumulation data were fit to the following
Gompertz function where ESE = early-season P. annua emergence (page 2, Model
development, Early season emergence, paragraph 3). Taylor et al. teach in Figure 1,
emergence data were collected weekly with observations regressed over cooling
degree days (CDD21c) with accumulation beginning at the summer solstice using a 21°C base temperature (page 4, Figure 1). Taylor et al. teach in Figure 2, emergence was monitored on a weekly bases in plots established as a hybrid Bermuda grass (C.
dactylon L. Pers X C. transyaalensis Burtt-Davy, CV. 'Tifway') fairway and maintained as bare soil. Combined observations were regressed over cooling degree day
accumulation from the summer solstice using a 21° base temperature (page 4, Figure
2). Taylor et al. teach in 2020, P. annua emergence was first documented at ETREC
after 8 CDD21C accumulated on August 5th and continued throughout autumn. Average day/night air temperatures during this period were 22.7/11.2°C, respectively, whereas soil temperatures averaged 18.9°C. This period of peak emergence at ETREC occurred earlier in 2020 than 2019 and air temperature alone does not explain the difference considering that day/night air temperature averages during this four-week period were higher in 2020 than 2019 (page 5, first full paragraph).
Taylor et al. teach mixtures of pre- and postemergence herbicides are
recommended for controlling weeds like P. annua known to evolve resistance to
herbicides. Managers are charged with applying pre- and postemergence mixtures
when emergence is most rapidly changing. Taylor et al. further teach seven-day mean
soil temperature (5cm) was 18.9°C and seven-day mean rainfall was 12.7. Taylor et al.
teach that future research exploring efficacy of pre- and postemergence herbicide
mixtures applied for P. annua using these benchmarks is warranted. Turfgrass
managers often implement measures to control fungal pathogens using similar edaphic
benchmarks and may readily implement measures for P. annua control at this time as
well (page 5, Discussion, paragraph 2).
Finding a Prima Facie Obviousness Rationale and Motivation
(MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Celsius® WG Product Label and the Taylor Publication and use the recommendations of the Taylor Publication to
determine optimal method steps to apply thiencarbazone-methyl to a stand of warm
season turfgrass comprising Poa annua. Celsius® WG Product Label teaches the active
ingredients are thiencarbazone-methyl, iodosulfuron, and dicamba. Celsius® WG
Product Label teaches that Celsius® WG is used for the suppression of annual
bluegrass (Poa annua) to treat early postemergence of the annual bluegrass. One of
ordinary skill in the art would have been motivated to use the guidance of the teachings
of the Taylor Publication to determine the post emergence period taught in the Celsius®
WG Product Label.
Regarding claim 4, 6, and 7, Taylor et al. teach mixtures of pre- and
postemergence herbicides are recommended for controlling weeds like P. annua known
to evolve resistance to herbicides. Taylor et al. further teach seven-day mean soil
temperature (5cm depth) was 18.9°C and seven-day mean rainfall was 12.7. Because
Taylor et al. teach that future research exploring efficacy of pre- and postemergence
herbicide mixtures applied for P. annua using the benchmark of seven-day mean soil
temperature to determine the postemergence period, one of ordinary skill in the art
would have further used the teachings of Taylor et al. which teaches P. annua
emergence was first documented at ETREC after 8 CDD21C (cooling degree days
accumulated from the summer solstice using a 21°C) on August 5th and continued
throughout autumn. As such, based on these teachings it would have been obvious to
one of ordinary skill in the art that this information can be used to predict the emergence
of Poa annua using the mean soil temperatures from summer solstice through autumn,
as a person with ordinary skill has good reason to pursue known options within his or
technical grasp. Note: MPEP 2141 [R-6] KSR International CO. V. Teleflex Inc. 82
USPQ 2d 1385 (Supreme Court 2007).
Regarding claim 7, one of ordinary skill in the art would have been motivated to
use the teachings of Taylor et al. discussed herein above to determine the seven day
mean soil temperature below the warm season turfgrass first falls below about 18.9
degrees Celsius from the summer solstice through autumn and contact the stand of the
warm season turfgrass comprising Poa annua with an herbicidally effective amount of
Celsius® WG during this period, especially since Taylor et al. teach application of post
emergence herbicides when emergence is most rapidly changing, which is between the
40th and 43rd week of the year when the seven-day mean soil temperature is 18.9°C. As such, one of ordinary skill in the art would have been motivated to use these teachings as guidance to apply Celsius® WG which is used for the suppression of annual bluegrass (Poa annua) during early postemergence in warm turfgrass, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. V. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Regarding claims 8 and 9, it would have been obvious to one of ordinary skill in
the art to first monitor the daily soil temperature below the warm season turfgrass
because Taylor et al. teach Poa annua emergence was monitored in hybrid Bermuda
grass. Environmental monitoring devices were installed in each plot to collect soil
temperature (5cm depth), air temperature, soil moisture and daily light integral data on
15-min. intervals for the duration of the experiment. Likewise, one of ordinary skill in the
art would have been motivated to use the teachings of Taylor et al. to determine a
seven day mean soil temperature based on the daily soil temperature because Taylor et
al. further teach seven-day mean soil temperature (5cm depth) was 18.9°C.
Furthermore, one of ordinary skill in the art would have been motivated to use the
teachings of Taylor et al. discussed herein above to determine the seven day mean soil
temperature below the warm season turfgrass first falls below about 18.9 degrees
Celsius from the summer solstice through autumn and contact the stand of the warm
season turfgrass comprising Poa annua with an herbicidally effective amount of
Celsius® WG during this period, especially since Taylor et al. teach application of post
emergence herbicides when emergence is most rapidly changing, which is between the
40th and 43rd week of the year when the seven-day mean soil temperature is 18.9°C. In
addition, Celsius® WG Label teaches the product is applied to Bermudagrass up to 60
days prior to seeding without a significant reduction in stand where the soil is disturbed
at planting. It would have been obvious to one of ordinary skill in the art that this would
be before the emergence of one or more Poa annua plants is visually observable above
the turfgrass canopy in the stand of the turfgrass. As such, one of ordinary skill in the art
would have been motivated to use these teachings to apply Celsius® WG which is used
for the suppression of annual bluegrass (Poa annua) during early postemergence in
warm turfgrass, as a person with ordinary skill has good reason to pursue known
options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. V.
Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Regarding claims 10 and 11, it would have been obvious to one of ordinary skill
in the art to first monitor the daily soil temperature below the warm season turfgrass
because Taylor et al. teach Poa annua emergence was monitored in hybrid Bermuda
grass. Environmental monitoring devices were installed in each plot to collect soil
temperature (5cm depth), air temperature, soil moisture and daily light integral data on
15-min. intervals for the duration of the experiment. Likewise, one of ordinary skill in the
art would have been motivated to use the teachings of Taylor et al. to determine a
seven day mean soil temperature based on the daily soil temperature because Taylor et
al. further teach seven-day mean soil temperature (5cm) was 18.9°C. Furthermore, it
would have been obvious to one of ordinary skill in the art based on the information to
use the teachings of Taylor et al. discussed herein above to predict based on the seven
day mean soil temperature below the warm season turfgrass first falls below about 18.9
degrees Celsius from the summer solstice through autumn and contact the stand of the
warm season turfgrass comprising Poa annua with an herbicidally effective amount of
Celsius® WG during this period, especially since Taylor et al. teach application of post
emergence herbicides when emergence is most rapidly changing, which is between the
40th and 43rd week of the year when the seven-day mean soil temperature is 18.9°C. In
addition, Celsius® WG Label teaches in the product is applied to Bermudagrass up to
60 days prior to seeding without a significant reduction in stand where the soil is
disturbed at planting. It would have been obvious to one of ordinary skill in the art that
this would be before the emergence of one or more Poa annua plants is visually
observable above the turfgrass canopy in the stand of the turfgrass. As such, one of
ordinary skill in the art would have been motivated to use these teachings to apply
Celsius® WG which is used for the suppression of annual bluegrass (Poa annua) during
early postemergence in warm turfgrass, as a person with ordinary skill has good reason
to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR
International CO. V. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Regarding claims 12 and 13, it would have been obvious to one of ordinary skill
in the art to first monitor the daily soil temperature below the warm season turfgrass
because Taylor et al. teach Poa annua emergence was monitored in hybrid Bermuda
grass. Environmental monitoring devices were installed in each plot to collect soil
temperature (5cm depth), air temperature, soil moisture and daily light integral data on
15-min. intervals for the duration of the experiment. One of ordinary skill in the art would
have been motivated to use the teachings of Taylor et al. to determine a seven day
mean soil temperature based on the daily soil temperature because Taylor et al. further
teach seven-day mean soil temperature (5cm depth) was 18.9°C. Likewise, one of
ordinary skill in the art would have been motivated to use the same daily monitoring of
the air temperature to determine the seven day mean air temperature. As such, one of
ordinary skill in the art would have been motivated to use the mean air temperature data
and the mean soil temperature data to predict the time period to apply Celsius® WG
when Poa annua is susceptible to the application and then contacting the stand of warm
season turfgrass comprising Poa annua with Celsius® WG when Poa annua
susceptibility comprises a period of time when the emergence of one or more Poa
annua plants above a turfgrass canopy in the stand of the turfgrass is not yet visually
observable. In addition, Taylor et al. teach application of post emergence herbicides
when emergence is most rapidly changing, which is between the 40th and 43rd week of
the year when the seven-day mean soil temperature is 18.9°C. In addition, Celsius®
WG Label teaches the product is applied to Bermudagrass up to 60 days prior to
seeding without a significant reduction in stand where the soil is disturbed at planting.
As such, it would have been obvious to one of ordinary skill in the art that this would be
before the emergence of one or more Poa annua plants is visually observable above
the turfgrass canopy in the stand of the turfgrass. One of ordinary skill in the art would
have been motivated to use these teachings to contact the stand with Celsius® WG
which is used for the suppression of annual bluegrass (Poa annua) during early
postemergence in warm turfgrass.
Regarding claims 5 and 14, it would have been obvious to one of ordinary skill in
the art to use the teachings of Taylor et al. to determine the seven-day mean air
temperature surrounding the warm season turfgrass. Taylor et al. teach Poa annua
emergence was monitored in hybrid Bermuda grass. Environmental monitoring devices
were installed in each plot to collect soil temperature (5cm depth), air temperature, soil
moisture and daily light integral data on 15-min. intervals for the duration of the
experiment. Taylor et al. also teach meteorological data within a 20 mile radius of plots
were also collected from publicly available sources. Likewise, Taylor et al. teach using
data from auxiliary sources along with those captured in-ground sensors reduced the
risk of point sample information not accurately representing actual variable averages
such that inferences could be made about P. annua across a wider scale than the
immediate area around the in-ground sensor. Based on these teachings one of ordinary
skill would find it obvious to use the data gathered to determine when the seven-day
mean air temperature surrounding the warm season turfgrass falls below about 18.4
degrees Celsius following the summer solstice, or during the autumn based on
meteorological observations or forecasts for the geographic area in which warm season
turfgrass stand is located. Furthermore, it would have been obvious to one of ordinary
skill in the art based on the information to use the teachings of Taylor et al. discussed
herein above to contact a stand of warm season turfgrass comprising Poa annua with
an herbicidally effective amount of Celsius® WG during this period, especially since
Taylor et al. teach application of post emergence herbicides when emergence is most
rapidly changing, which is between the 40th and 43ʳᵈ week of the year when the seven-
day mean soil temperature is 18.9°C. Taylor et al. further teach during the 2019 the
average day/night air temperature was 20.3/8.2°C and in 2020 the average day/night
temperatures during this period were 22.7/11.2°C, respectively. Since Celsius® WG
Label teach that an integrated weed-management program for herbicide uses that
includes historical information related to herbicide use, one of ordinary skill in the art
would have been motivated to use the average day/night air temperature data to
determine the optimal time to apply Celsius® WG. As such, one of ordinary skill in the
art would have found it obvious to contact the stand of warm season turfgrass during
this period of time, with a reasonable expectation of success, as a person with ordinary
skill has good reason to pursue known options within his or technical grasp. Note:
MPEP 2141 [R-6] KSR International CO. V. Teleflex Inc. 82 USPQ 2d 1385 (Supreme
Court 2007).
Regarding claim 16, it would have been obvious to one of ordinary skill in the art
to first monitor the daily air temperature surrounding the warm season turfgrass
because Taylor et al. teach Poa annua emergence was monitored in hybrid Bermuda
grass. Environmental monitoring devices were installed in each plot to collect soil
temperature (5cm depth), air temperature, soil moisture and daily light integral data on
15-min. intervals for the duration of the experiment. Likewise, one of ordinary skill in the
art would have been motivated to use the teachings of Taylor et al. to determine a
seven day mean air temperature based on the daily air temperature because Taylor et
al. further teach the average air temperature was determined. In addition, one of
ordinary skill in the art would have been motivated use the seven day mean air
temperature to predict the time of first emergence of Poa annua in the stand of warm
season turfgrass following the summer solstice, or during the autumn, wherein the time
of first emergence is prior to when the emergence of one or more Poa annua plants is
visually observable above the turfgrass canopy in the stand of the turfgrass. Taylor et al.
teach application of post emergence herbicides when emergence is most rapidly
changing, which is between the 40th and 43ʳᵈ week of the year when the seven-day
mean soil temperature is 18.9°C. In addition, Celsius® WG Label teaches the product is
applied to Bermudagrass up to 60 days prior to seeding without a significant reduction
in stand where the soil is disturbed at planting. As such, it would have been obvious to
one of ordinary skill in the art that this would be before the emergence of one or more
Poa annua plants is visually observable above the turfgrass canopy in the stand of the
turfgrass. As such, one of ordinary skill in the art would have been motivated to use
these teachings to contact the stand with Celsius® WG which is used for the
suppression of annual bluegrass (Poa annua) during early postemergence in warm
turfgrass, as a person with ordinary skill has good reason to pursue known options
within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. V. Teleflex
Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Therefore, the claimed invention as a whole would have been prima facie
obvious to one of ordinary skill in the art at the time the invention was made.
Claims 1-2, 4-20 are rejected under 35 U.S.C. 103 as being unpatentable over Yelverton et al (US 20210161139) in view of McCurdy et al (Developing and implementing a sustainable, integrated weed management program for herbicide-resistant Poa annua in turfgrass), Celsius® WG Label and Taylor et al. Publication (2021, Scientific Reports, Taylor et al.).
Applicant's claims
Applicant claims are delineated above.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Yelverton et al teach methods for selectively controlling or modifying the growth of Poa annua in a turf grass using a composition comprising an herbicidally-effective amount tebuconazole, or a salt thereof (See abstract and claim 1).
Regarding claims 1-2, Yelverton et al teach that the said turf grass comprises a warm season turf grass (See claims 9-12), and that tebuconazole is typically applied about 1-2 weeks after seedling germination and emergence (i.e. early post emergent) of the turf grass (See [0007]).
Regarding aspects of claims 4-16, Yelverton et al teach that the turf grass can include a warm season turf grass. Warm season turf grasses thrive during the warmer seasons when temperatures are between 80° and 95° F. and are often found in locations where the climate is warm year round. Warm season turf grasses require plenty of sunlight and can be adversely affected by excess moisture and over-watering. When temperatures drop below 65° F., warm season turf grasses will start to go dormant and when temperatures drop very low especially for extended periods of time, such as when night time temperatures are below 55° F., warm season grasses can die off completely. In some embodiments, the turf grass can include a majority of warm season turf grasses (See [0030]-[0032]).
It is further disclosed that “Poa annua populations were visually estimated every 2 weeks from February through April (Table 4). Poa annua germinated in early fall, matured throughout fall, and produced seeds in the spring. A second Poa annua germination was also possible in winter. Therefore, the most representative date for evaluating Poa populations was in late April. The use of tebuconazole (TORQUE®) reduced the percentage of Poa annua in the test plots down to 4.3%, which was significantly lower than the untreated control that had 21.3% Poa annua” (See [0050]).
Regarding claim 20, Yelverton et al teach that the turf grass can include a warm season turf grass, such as bermudagrass (Cynodon L. C. Rich), zoysiagrass (Zoysia Willd.). St. Augustinegrass (Stenotaphrum secundatum (Walt.) Kuntze), centipedegrass (Eremochloa ophuroides (Munro.) Hack.), buffalograss (Buchloe dactyloides (Nutt.) Engelm.), etc. In some embodiments, the warm season turf grass is bermudagrass (See [0033]).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Yelverton et al is silent regarding the herbicidal treatment comprising thiencarbazone-methyl. This would have been obvious to one of ordinary skill in the art as taught by McCurdy et al and/or Celsius® WG Label and Taylor et al.
McCaurdy et al teach a sustainable integrated weed management program for Poa-annua in turfgrass (See title and abstract).
McCurdy et al provide a table of pre- and post emergence herbicide efficacy on Poa annua in warm season. The said Table 1, includes a treatment program including thiencarbazone-methyl, foramsulfuron and halosulfuron (Tribute TOTAL), which shows excellent control (i.e. >90%) and safe for use on bermudagrass (See last page of Table 1).
Celsius® WG Label’s teachings are delineated above and incorporated herein. Specifically, regarding claims 1 and 18, Celsius® WG Label teaches a composition comprising thiencarbazone-methyl, iodosulfuron-methyl-sodium and dicamba effective in controlling Poa annua in warm season turf grasses including bermudagrass.
Taylor et al’s teachings are also delineated above and incorporated herein.
Finding a Prima Facie Obviousness Rationale and Motivation
(MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to have combined the teachings of Celsius® WG Label, McCurdy et al and Taylor et al with that of Yelverton et al and arrive at the claimed invention with a reasonable expectation of success. It would have been obvious to do so because Yelverton et al teach an effective method of controlling Poa annua in warm season turfgrass and provide the specifics of this treatment. While Yelverton et al teach the said method by contacting the Poa annua or the turfgrass with a herbicidally effective amount of tebuconazole, the other references clearly teach that Poa annua can effectively be controlled in a warm season turfgrass by thiencarbazone-methyl. McCurdy et al teach that the thiencarbazone-methyl in combination with two other active agents provided an above 90% control and Celsius® WG Label disclose an herbicidal composition comprising thiencarbazone-methyl, iodosulfuron-methyl-sodium and dicamba. Celsius® WG Herbicide Label teaches Celsius® WG is a herbicide for the postemergence control of annual and perennial broadleaf weeds and grasses in warm-season turf types, such as Bermudagrass, Centipedegrass, and Zoysiagrass. The Celsius® WG Herbicide Label further teaches Celsius® WG is applied to Bermudagrass up to 60 days prior to seeding without a significant reduction in stand where the soil is disturbed at planting and for newly established stands, Celsius® WG is applied at least 4 weeks after emergence. Therefore, one of ordinary skill in the art would have been motivated to have incorporated thiencarbazone-methyl into the method of Yelverton et al and expect a reasonable success of achieving an effective treatment for Poa annua.
Similarly, one of ordinary skill in the art would have been motivated to have incorporated the method of Taylor et al into the teachings of the combined references to arrive at the claimed method and follow the said steps. It would have been obvious to do so because Taylor et al disclose determining the seven day mean soil temperature below the warm season turfgrass first falls below about 18.9 degrees Celsius from the summer solstice through autumn and contact the stand of the warm season turfgrass comprising Poa annua with an herbicidally effective amount of Celsius® WG during this period, and especially because Taylor et al teach application of post emergence herbicides when emergence is most rapidly changing, which is between the
40th and 43rd week of the year when the seven-day mean soil temperature is 18.9°C. As such, one of ordinary skill in the art would have been motivated to use these teachings as guidance to apply the herbicidally effective composition taught by the combined references including Celsius® WG which are used for the suppression of annual bluegrass (Poa annua) during early postemergence in warm turfgrass, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. V. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Therefore, the claimed invention as a whole would have been prima facie
obvious to one of ordinary skill in the art at the time the invention was made.
Claims 1-3 are rejected under 35 U.S.C. 103 as being unpatentable over Yelverton et al (US 20210161139) in view of VARROTM herbicide by BAYER as evidenced Phiepho et al (Journal of Plant Diseases and Protection).
Applicant's claim 1-3
Claims 1-3 are delineated above.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
The teachings of Yelverton et al is delineated above and incorporated herein.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Yelverton et al is silent regarding the herbicidal treatment method comprising
warm season turfgrass and/or the Poa annua with a single application of
thiencarbazone-methyl applied during the early post-emergence period, the single
application effective to achieve an Abbott's percentage reduction of at least 80% for Poa
annua in the stand of warm season turfgrass in the absence of an application during the
early post-emergence period of any other herbicidal active ingredient effective for the
control of Poa annua in warm season turfgrass. It is for this reason the VARROTM and Piepho et al are added as secondary references.
VARROTM herbicide by BAYER discloses an herbicidal composition comprising thiencarbazone-methyl as the only active agent and wherein the formulation is a post-emergent control of certain grasses and weeds (See pages 1 and 4-5).
As evidenced by
Phiepho et al. teach the American entomologist Walter Sidney Abbott proposed
an equation for assessing efficacy, and it is still widely used today for analyzing
controlled experiments in crop protection and phytomedicine (page 1, Abstract).
Phiepho et al. teach that Abbott's formula has subsequently been applied in many
publications, not only in entomology, but also in weed science (page 1, col. 2,
paragraph 1).
Finding a Prima Facie Obviousness Rationale and Motivation
(MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of invention to have combined the teachings of VARROTM herbicide as evidenced by Phiepho et al with that of Yelverton et al to arrive at the claimed invention. One of ordinary skill in the art would have been motivated to combine the teachings of Yelverton et al, VARROTM herbicide as evidenced by Phiepho et al because Yelverton et al teach an effective method of controlling Poa annua in warm season turfgrass and provide the specifics of this treatment. While Yelverton et al teach the said method by contacting the Poa annua or the turfgrass with a herbicidally effective amount of tebuconazole, VARROTM clearly teach that Poa annua can effectively be controlled in a warm season turfgrass by thiencarbazone-methyl. VARROTM herbicide discloses a composition comprising thiencarbazone-methyl alone as an effective post emergent treatment for grasses. Thus, one of ordinary skill in the art would have been motivated to have incorporated VARROTM herbicide’s teachings on using thiencarbazone-methyl for the effective treatment of post emergent grasses such as Poa annua into the teachings of Yelverton et al with a reasonable expectation of success.
Additionally, one of ordinary skill in the art would have been motivated to get guidance from both references on determining the single application rates for the said composition in early postemergence control of Poa annua. Likewise, one of ordinary skill in the art would have been motivated to use known methods of determining the efficacy of such composition in the field. One of ordinary skill in the art would have looked to Abbott's method that is widely used to analyze controlled experiments in weed science with a reasonable expectation of success to determine the efficacy of the said composition, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. V. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Regarding the limitation of the single application effective to achieve an Abbott's
percentage reduction of at least 80% for Poa annua in the stand of warm season
turfgrass in the absence of an application during the early post-emergence period of any
other herbicidal active ingredient effective for the control of Poa annua in warm season,
one of ordinary skill in the art would have been motivated to use optimization and
experimentation to determine the efficacy rate for weed control. The adjustment of
particular conventional working is deemed merely a matter of judicious selection and
routine optimization which is well within the purview of the skilled artisan.
Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize weed control. Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,453,350. Although the conflicting claims are not identical, they are not patentably distinct from each other because the instant claims are anticipated by the reference claims. The said instant claims are generic to all that is recited in reference claims. That is, the reference claims fall entirely within the scope of the instant claims.
Specifically, the examined claims and reference claims are drawn to a
a method of controlling Poa annua in a stand of warm season turfgrass, the method comprising: contacting a stand of warm season turfgrass comprising Poa annua with an herbicidally effective amount of thiencarbazone-methyl, wherein the contacting occurs during an early post-emergence period of Poa annua. Dependent claims 2-20 of each application are also drawn to the same invention and contain similar limitations.
The difference is that the reference claim 1 includes a definition of early post-emergence period and the amount of thiencarbazone-methyl. These difference however, are within the method of examined claim 1. That is examined claim 1 recites that the contacting cooccurs during an early post emergence period and that an effective amount of thiencarbazone-methyl is applied to the Poa annua or the turf comprising it. These limitations are also present in the examined dependent claims.
Thus, the examined claims 1-20 are anticipated by the reference claims 1-20.
In conclusion, no claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Mina Haghighatian whose telephone number is (571)272-0615. The examiner can normally be reached M-F, 7-5 EST.
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/Mina Haghighatian/
Mina Haghighatian
Primary Examiner
Art Unit 1616