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 .
Status of Claims
Preliminary amendment filed on 02/22/2024 is acknowledged.
Claims 1-37 are cancelled. Claims 38-72 are new.
Claims 38-72 are pending and being examined herein on merits.
Priority
The instant application 18685743, filed on 02/22/2024, is a 371 of PCT/AU2022/051045, filed on 08/25/2022, which claims foreign priority of Australia 2021221815, filed on 08/25/2021.
The foreign priority document indicates that “the most common forms of bromoxynil in agrochemical formulations include the octanoate and heptanoate esters, sometimes as mixtures of the two” (Pg. 1, Background Art, Lines 13-14), and in summary of invention (Pg. 4, Lines 20-21) indicates that “bromoxynil may be present as the octanoate ester. However, the invention is not limited to this. Other esters, such as the heptanoate ester, may be suitable”. Further, foreign priority document does not mention butyrate ester. Therefore, the priority document does not provide support on Claims 38 and 57 reciting that “(i) bromoxynil is not a mixture of heptanoate and butyrate esters; and (ii) when bromoxynil is the sole active ingredient, it is not a mixture of its octanoate ester with its heptanoate ester or a mixture of its octanoate ester with its butyrate ester” (Claim 38) and “provided that bromoxynil is not a mixture of heptanoate and butyrate esters” (Claim 57).
Thus, the instant claims 38-64, 69 and 72 do not obtain the benefit of the earlier foreign application. The effective filing date for the instant claims 38-64, 69 and 72 is 8/25/2022, and the effective filing date for instant claims 65-68 and 70-71 is 8/25/2021.
Information Disclosure Statement
The information disclosure statement (IDS), filed on 02/22/2024, is in compliance with the
provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the
Examiner.
Objections to Specification
The use of the terms, Flight, Paragon Xtra, Eliminar, Solvesso, Atlox, Agrilan, Nansa, Emulsogen, Termul, Gensil, Rhodacal, Mettler, etc., which are trade names or marks used in commerce, have been noted in this application. The terms should be accompanied by the generic terminology; furthermore each term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
The disclosure is objected to because of the following informalities:
Specification does not provide full names of the acronyms “ai/L”, “MCPA” and “HPPD”.
Appropriate correction is required.
Claim Objections
Claims 38-39, 42, 45, 48, 53-54, 57-58, 62, 64-65 and 70 are objected to because of the following informalities:
Claim 38 recites first-time appearing acronyms “EC” and “ai/L” in the claim set without full definitions of the words, e.g., emulsifier concentrate (EC), active ingredient/L (ai/L). All acronyms should contain full definition of the names when they first appear in the claim set.
Claim 42 recites acronym “NMP” without detailed name N-methyl-2-pyrrolidone.
Claim 48 recites acronyms “HPPD” and “MCPA” without detailed names.
Claim 53 recites acronym “PDS” without detailed name phytoene desaturase.
Claim 64 recites acronym “MCPA 2-EHE” without detailed name of MCPA 2-ethylhexylester.
Claims 38-39, 45, 54, 57-58, 62, 64-65 and 70 recite “g ai/L” and/or “g/L”. Unit format throughout the claim set should be consistent, unless they have different meanings.
Appropriate correction is required.
Claim Interpretation
Acronyms missing full names in instant specification/claim are interpreted as following:
g ai/L: active ingredient g/L.
MCPA: 2-methyl-4-chlorophenoxyacetic acid.
HPPD: hydroxyphenyl pyruvate dioxygenase.
Interpretation regarding specific phrases in claims:
The phrases “highly loaded”, “EC” (emulsifier concentrate), “low flammability and cold stability”, “suitable”, “low water solubility” are considered as properties of the formulation or agents because they do not contribute structural limitation to the formulation. The phrase “provided that” is interpreted as on conditions that have to be met.
The phrases “having” and “includes” are interpreted as open-ended language “comprising” or “comprises”.
The ingredient loading amount is interpreted as based on total volume of the formulation.
The term "about" is interpreted as having its ordinary and customary meaning to a POSITA as "approximately" (see MPEP 2111.01 IV A), i.e. in general, within a range of plus or minus 10%, which interpretation is consistent with the instant specification usage of the term.
Claims 38, 57, 65, and 70-71 are interpreted as following.
Claim 38 is interpreted as:
A bromoxynil formulation comprises bromoxynil, two emulsifiers, and at least one solvent, wherein:
bromoxynil loading is more than 280 g/L when it is the sole active ingredient or one of two active ingredients, and at least 275 g/L when the formulation has at least two other active ingredients,
bromoxynil is not a mixture of heptanoate and butyrate esters, and
when bromoxynil is the sole active ingredient, it is not a mixture of its octanoate ester with its hepatanoate ester, or not a mixture of its octanoate ester with its butyrate ester.
Claim 57 is interpreted as:
A bromoxynil formulation comprises a bromoxynil of at least 250 g/L, at least two additional active ingredients, two emulsifiers and a single solvent, and bromoxynil is not a mixture of heptanoate and butyrate esters.
Claim 65 is interpreted as:
A bromoxynil formulation comprises a bromoxynil of more than 210 g/L, at least one additional active ingredient other than MCPA as iso-octyl ester, two emulsifiers, and at least one solvent, and total active ingredient is more than 525 g/L.
Claim 70 is interpreted as:
A bromoxynil formulation comprises about 300 g/L bromoxynil octanoate and about 150 g/L fluroxypyr meptyl, two emulsifiers, and solvent acetophenone.
Claim 71 is interpreted as the formulation of claim 70, wherein the emulsifiers are linear dodecylbenzene sulfonate calcium salt and alkoxylated alkylphenols, with solvent of 2-ethyl hexanol, or propylene glycol, or both.
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.
Claims 38-72 are 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.
Claims 38, 57, 65 and 70 each recite terms “highly loaded”, “cold stability”, and/or “suitable solvent”, which are relative terms and render the claims indefinite. The terms “highly loaded”, “low flammability and cold stability”, and “suitable solvent” are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
It is unclear how high of the loaded concentration can be regarded as highly loaded, instant specification (Pg. 1, Lines 15-16) indicates typical bromoxynil concentrations of EC formulations range from 140 to 280 g ai/L, however, 275 g ai/L is seen in claim 38, 250 g ai/L is shown in claim 57 and 210 g ai/L appears in claim 65, therefore the instant specification does not provide a standard for ascertaining the requisite degree of “highly loaded” concentration of bromoxynil. It is unclear of the term “cold stability” as what degree or condition is considered cold stable, although specification (Pg. 4, lines 16-18) provides a citation for the purpose of defining the term, the definition is not provided. It is unclear what perspective of “suitable” refers to, whether it provides 100% solubility or it qualifies to maintain low flammability and cold stability.
In addition, Claims 38, 57 and 70 each recites “each as herein defined”, which renders the claim indefinite since the claim is drawn to “A… bromoxynil EC formulation”, i.e. a single formulation. The phrase “each as…” implies multiple formulations. It is not clear to which formulation this phrase is referring. It is also not clear if the claim is reciting different formulation in the alternative or if it is one single formulation.
Claims 38-39, 45, 54, 57-58, 62, 64-65 and 70 each recites loading amount of agent(s) in g ai/L or g/L without defining the calculation foundation. It is unclear whether the concentration is based on the agent’s own solution prior to be loaded into the formulation, or it is meant to be the final concentration of the agent present in the formulation.
Acronyms “ai/L”, MCPA and/or HPPD appearing in claims 38-39, 48-49, 54, 57, 64-65 and 70 are not defined in claims/specification, and whether these terms are correctly interpreted based on examiner’s broadest reasonable interpretation is in doubt, and hence renders each claim indefinite.
Claim 41 recites “low water solubility”. The term is a relative term which renders the claim indefinite. The term is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear how low is considered as low water solubility.
Claims 48, 53 and 54 each recite “suitable”. The term is a relative term which renders the claim indefinite, as discussed above.
Claim 71 recites “in 2-ethyl hexanol/propylene glycol”. It is unclear whether “2-ethyl hexanol/propylene glycol” being a mixture that is required together, or one of “2-ethyl hexanol” and “propylene glycol” as an alternative. In other words, the slash “/” between the two agents has to be “and” or “or” is unclear. Further, it is unclear whether 2-ethyl hexanol/propylene glycol are solvents or emulsifiers.
Claims 40, 42-44, 46-47, 49-52, 55-56, 59-61, 63 and 66-69 are rejected accordingly because they directly or indirectly depend on one of the independent claims 38, 57, 65 or 70, and they do not clarify the issues addressed above.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 71 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 71 recites “2-ethyl hexanol/propylene glycol”. If they are considered to be solvent(s) for the salt, it fails to further limit the formulation including “having … a single solvent, being acetophenone” of claim 70, which claim 71 depends upon. If they are considered emulsifiers, then there are more than two emulsifiers in the formulation, while claim 70 defines “having … two emulsifiers” in the formulation. Therefore, the claim fails to further limit the scope of claim 70.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 38, 41, 43-44, 48, 50-52, 57, 60, 63, 69 and 72 are rejected under 35 U.S.C. 102 (a)(1) and (a)(2) as being anticipated by Baath et al. (US20200077645, Pub. Date 03/12/2020; filing date, 09/10/2019 or earlier).
Regarding independent claims 38 and 57, Baath exemplifies compositions A-D containing bromoxynil octanoate present at 351.17 g/L in the formulation, with other active herbicidal ingredients including 21.48 g/L flucarbazone sodium, 4.25 g/L cloquintocet mexyl, 130.27 g/L fluroxypyr meptyl, and 375.24 g/L MCPA-2-ethyhexyl (resulting in total herbicide 882.41 g/L), emulsifiers polyoxyethylene sorbitol hexaoleate, ethoxylated isotridecanol, and sodium dioctyl sulphosuccinate; dispersant polymeric ester dispersant-Atlox 4916, 4912 or 4914; rheology aid organoclay-Bentone 1000 ([0022], Compositions A-D, Table 1).
Regarding the suitable solvent in instant claims, Baath teaches an effective herbicidal composition against a broad weed spectrum, having chemical stability of all active ingredients, and the formulation can be used as an oil dispersion (OD), even though it contains no typical solvent or oil, and instead, the MCPA-2-ethylhexyl herbicide is used as the solvent/oil itself (e.g., [0017]). Baath indicates that the formulation significantly increases the total loading of active ingredients using MCPA-2-ethylhexyl as solvent/carrier, and additional active ingredients such as flucarbazone sodium, cloquintocet, mecyl, fluroxypyr meptyl, and bromoxynil octanoate can be added to the formulation (e.g., [0019]).
Therefore, Baath exemplifies herbicidal formulations A-D comprising two emulsifiers, at least one suitable solvent as MCPA-2-ethylhexyl (e.g., [0017-0019]), at least two other active herbicides, with bromoxynil octanoate present at amount 351 g/L, falling within at least 275 g/L when the formulation having at least two other active ingredients as recited in instant claim 38, falling within at least 250 g/L as recited in instant claim 57. MPEP 2131.03.I states that "If the prior art discloses a point within the claimed range, the prior art anticipates the claim." UCB, Inc. v. Actavis Labs. UT, Inc., 65 F.4th 679, 687, 2023 USPQ2d 448 (Fed. Cir. 2023). Therefore, the loading amount of bromoxynil octanoate in instant claims 38 and 57 is anticipated. Furthermore, in Baath’s compositions A-D, bromoxynil is not a mixture of heptanoate and butyrate esters, and not a mixture of octanoate ester with heptanoate ester or a mixture of octanoate ester with butyrate ester, which read into instant claims 38 and 57.
In light of the claim interpretation as presented above, the properties of “highly loaded”, “EC”, “having low flammability and cold stability”, and “suitable” are inherent of the formulation, which is already taught by Baath. In other words, Baath teaches the highly loaded bromoxynil EC having low flammability and cold stability with a suitable solvent.
Regarding instant claims 41 and 60, Baath teaches the herbicidal composition is an oil formulation using active ingredient MCPA-2-ethylhexyl as sole solvent/oil (e.g., [0017]); and that most oil dispersion matrices use oil based solvents, and especially aromatic solvents (e.g., [0026]). In light of claim interpretation, having low water solubility is property of aromatic solvents.
Regarding instant claims 43-44, 48, 50 and 52, as discussed above, Baath exemplifies herbicidal formulations A-D comprising two emulsifiers, at least one suitable solvent as MCPA-2-ethylhexyl (e.g., [0017-0019]), at least two other active herbicides, e.g., a second active ingredient fluroxypyr meptyl (corresponding to instant claims 43-44), a third active ingredient cloquintocet-mexyl (as HPPD inhibitor and safener) (corresponding to instant claims 48, 50 and 52), in addition to first active ingredient bromoxynil octanoate.
MPEP 2112.01.II states "[p]roducts of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id. (Applicant argued that the claimed composition was a pressure sensitive adhesive containing a tacky polymer while the product of the reference was hard and abrasion resistant. "The Board correctly found that the virtual identity of monomers and procedures sufficed to support a prima facie case of unpatentability of Spada’s polymer latexes for lack of novelty."). For this instance, the recitations of “HPPD inhibitor”, “suitable herbicide safener”, or “herbicide safener” in claims are considered properties of the agents, since the agents are taught by prior art, these inherent properties necessarily present.
Regarding instant claim 51, Baath also teaches the formulation can contain antifoaming agent (e.g., [0006]), and exemplifies in composition D comprising bromoxynil octanoate 351.17 g/L, at least three other active herbicides, and MCPA-2-ethyhexyl, with three emulsifiers, and an antifoam agent silicon emulsion (Table 1, [0022]).
Regarding instant claim 63, Baath exemplifies in composition C comprising bromoxynil octanoate 351.17 g/L, at least four other active herbicides, four emulsifiers including castor oil ethoxylate (corresponding to ethoxylated castor oil), and suitable solvent MCPA-2-ethyhexyl (Table 1, [0022]).
Regarding instant claim 69, Baath throughout the reference teaches using bromoxynil octanoate and exemplifies in compositions A-D herbicide bromoxynil is present as octanoate ([0022], Table 1; Claim 20).
Regarding instant claim 72, Baath teaches a method of controlling weeds comprising applying the herbicidal composition to one or more crops (e.g., Abstract; Claims 16-18).
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 (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 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 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 38-46, 48-55, 57-61, 63-64, 69 and 72 are rejected under 35 U.S.C. 103 as being unpatentable over Baath et al. (US20200077645, 03/12/2020), as applied to claims 38, 41, 43-44, 48, 50-52, 57, 60, 63, 69 and 72 above, in view of Norbert et al. (TW201513787, 04/16/2015, Machine translation relied upon below; copy attached, PTO-892), as evidenced by PubChem (PubChem webpage for MCPA-2ethylhexyl, 2026, PTO-892).
Baath teaches a herbicidal composition that can include active herbicidal ingredients, e.g., bromoxynil octanoate (351.17 g/L), cloquintocet mexyl, flurocypry meptyl, and MCPA-2-ethylhexyl, with multiple emulsifiers, and use MCPA-2-ethylhexyl itself as the sole solvent/carrier in the formulation, as applied to claims 38, 43-44, 48, 50-52, 57, 63, 69 and 72 above and discussed in great detail, and incorporated herein.
Regarding instant claim 39, Baath teaches that the composition can comprise one or more active herbicidal ingredients including bromoxynil octanoate in the formulation (e.g., Claims 1-2), and the herbicide(s) can present in an amount from about 2 % to about 80 % by weight of the composition (e.g., Claim 7). Based on compositions A-D in Baath having bromoxynil load 351.17 g/L is equivalent to 29.76% by weight (Table 1, [0022]), amount 1% would equal to 11.8 g/L (calculated by 130.27/11.04 or 351.17/29.76), Baath therefore teaches load range of a sole active ingredient equivalent to range about 2-80% by weight can be about 24 g/L to 944 g/L. Further, in light of the claim interpretation, about (as ±10%) 400 g/L in instant claim 39 results in range as 360 g/L to 440 g/L. The bromoxynil 351.17 g/L in Baath’s compositions is as close as 97.5% (calculated by 351.17/360) to the low end of instantly claimed amount 360 g/L range.
Regarding instant claims 40, Baath teaches that emulsifiers for the composition can include castor oil ethoxylates, salts of dodecylbenzene sulfonate (e.g., [0006]), and exemplifies in composition C comprising emulsifiers including castor oil ethoxylate (corresponding to ethoxylated castor oil) (Table 1, [0022]).
Regarding instant claim 45, Baath exemplifies compositions A-D comprising bromoxynil octanoate 351.17 g/L and fluroxypyr meptyl at 130.27 g/L (Table 1, [0022]). The bromoxynil amount 351.17 g/L is 106% as close to the high end of about (as ±10%) 300 g/L (range as 270 -330 g/L), and fluroxypyr meptyl at 130.27 g/L is 96.5% as close to the low end of about 150 g/L (range 135-165 g/L) in light of claim interpretation as presented above.
Regarding instant claim 54, Baath teaches formulations can comprise one or more active herbicide ingredients at amount range 2% to 80% equivalent to about 24 g/L to 944 g/L (overlapping with active ingredient ranges as instantly claimed), as discussed above in detail regarding instant claim 70 and incorporated herein, and Baath exemplifies formulations comprising bromoxynil at 351.17 g/L, which is MCPA-2-ethylhexyl (as a species of MCPA) at 375.24 g/L, and other herbicides.
Regarding instant claim 55, Baath teaches that the emulsifiers can include nonionic surfactants such as alkylphenol ethoxylates (corresponding to alkoxylated alkylphenol) (e.g., Claim 9; [0006]), and anionic surfactants such as salts of dodecylbenzene sulfonate (e.g., Claim 10; [0006]) (corresponding to species of dodecylbenzene sulphonate). Dodecylbenzene sulfonate being linear is inherent property of the agent.
Regarding instant claim 64, as discussed above Baath teaches using MCPA-2-ethylhexyl throughout the refence and exemplifies in compositions A-D, as evidenced by PubChem, it is a synonym of MCPA 2-ethylhexyl ester (MCPA 2-EHE) as instantly claimed.
Baath does not teach alkylbenzene sulfonate calcium salt as an emulsifier as recited in instant claim 40 along with an alkoxylated phenol as recited in instant claim 46, or formulation comprising a co-solvent being N-methyl-2-pyrrolidone (NMP) as claim 42, or the aromatic solvent as a naphtha solvent or a C9 to C11 aromatic hydrocarbon as recited in instant claims 61. Baath also does not teach a second active ingredient as HPPD inhibitor chosen from pyrasulfotole, topramezone and bicyclopyrone as recited in instant claim 49, or a third active ingredient is picolinafen or another PDS inhibitor herbicide as recited in instant claim 53, or picolinafen or other suitable PDS inhibitor or blend of PDS inhibitors in addition to bromoxynil and MCPA in the formulation as recited in instant claim 54, or the additional active ingredients being chosen from a PDS inhibitor other than diflufenican loaded more than 25 g/L as recited in instant claims 58 and 64, or PDS inhibitor of the formulation is picolinafen as recited in instant claim 59.
Norbert throughout the reference teaches safened herbicidal compositions for use in corn (e.g., [0003]) and also in HPPD inhibitor-tolerant, phytoene desaturase inhibitor (PDS)-tolerant, bromoxynil-tolerant corn crops (e.g., [0034]), to control undesirable vegetation of broad spectrum of weed genera (e.g., [0036]).
Norbert teaches that alkylarylsulfonate salts, including calcium dodecylbenzene sulfonate (as a species of alkylbenzene sulfonate calcium salt, corresponding to instant claim 40) and alkylphenol-alkylene oxide (corresponding to alkoxylated phenol) are suitable surface-active agent that can be employed as emulsifying agents in the composition [0050] (corresponding to instant claim 46). Norbert teaches that liquid carriers used in the composition can be hydrocarbons such as aromatic solvents, vegetable oils such as castor oil, specific solvents such as N-methyl-2-pyrrolidinone (NMP) (corresponding to instant claim 42), petroleum naphtha (e.g., [0048]) (as a species of naphtha, corresponding to instant claim 61).
Nobert teaches one or more other herbicides can be included in the herbicide composition, which can be bromoxynil; MCPA; diflufenican, picolinafen (corresponding to PDS inhibitor agents); bicyclopyrone, pyrasulfotole, topramezone (corresponding to HPPD inhibitors) etc. (e.g., [0042]) (corresponding to instant claims 49, 53-54, and 59). Regarding being HPPD inhibitor or PDS inhibitor herbicide, it is inherent property of the herbicide compound, which has been taught by the prior art, see MPEP 2112.01.II states "[p]roducts of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Regarding the herbicide amount of PDS inhibitor, e.g., diflufenican, or picolinafen at about 29 to about 40 g/L as in instant claim 54, or more than 25 g/L as recited in instant claims 58 and 64, Baath teaches the herbicide amounts can be within range about 24 g/L to 944 g/L as discussed above, overlapping with instantly claimed amounts.
It would have been prima facie obvious for a person with ordinary skills in the art prior to filing date to incorporate Nobert’s teaching of specific emulsifiers, active herbicides, and solvents into the formulation taught by Baath to arrive at current invention. Because both compositions share same intended use as herbicide formulation, and Baath already teaches the categories of components suitable for the formulation, such as active herbicidal ingredients, oil carrier or aromatic solvents, and emulsifiers, while Nobert provides selections of agents in the safened herbicidal formulation for controlling weeds in corn crop field. It would have motivated artisans in the field to conveniently select specific components from the safened herbicidal composition taught by Nobert and incorporate into Baath’s formulation for reasonable expectation of success. It is well settled that it is a matter of obviousness for one of ordinary skill in the art to select a particular component from among many disclosed by the prior art as long as it is taught that the selection will result in the disclosed effect. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985).
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). For this instance, the loading amounts of ingredients taught by prior art are about the same, e.g., within ±10% of claimed amounts, or the ranges are overlapping with those in prior art. Furthermore, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
Claims 38, 43-44, 47-48, 50-52, 56-57, 60, 62-63, 69-70 and 72 are rejected under 35 U.S.C. 103 as being unpatentable over Baath et al. (US20200077645, 03/12/2020), as applied to claims 38, 41, 43-44, 48, 50-52, 57, 60, 63, 69 and 72 above, in view of Shroff et al. (IN2011MU02030, 01/18/2013, PTO-892).
Baath exemplifies herbicidal compositions A-D that can include active herbicidal ingredients, e.g., bromoxynil octanoate (351.17 g/L), cloquintocet mexyl, flurocypry meptyl, and MCPA-2-ethylhexyl, with multiple emulsifiers, and use MCPA-2-ethylhexyl itself as the sole solvent/carrier in the oil formulation, as applied to claims 38, 41, 43-44, 48, 50-52, 57, 60, 63, 69 and 72 above and discussed in great detail, and incorporated herein.
Regarding independent claim 70, Baath teaches that the composition can comprise one or more active herbicidal ingredients including bromoxynil octanoate and fluroxypyr meptyl in the formulation (e.g., Claims 1-2), and the herbicide(s) can present in an amount from about 2 % to about 80 % by weight of the composition (e.g., Claim 7) equivalent to range about 24 g/L to 944 g/L as discussed above. Baath exemplifies compositions A-D comprising a solvent, multiple emulsifiers, bromoxynil octanoate at 351.17 g/L, with multiple other active herbicides including fluroxypyr meptyl at 130.27 g/L (Table 1, [0022]). The bromoxynil octanoate amount 351.17 g/L in Baath is 106% as close to the high end of about (as ±10%) 300 g/L (as 270 -330 g/L), and fluroxypyr meptyl at 130.27 g/L is 96.5% as close to the low end of about 150 g/L (range 135-165 g/L) in light of claim interpretation of “about” term as presented above. In light of claim interpretation, “highly loaded”, “EC”, and “having low flammability and cold stability” are properties of the formulation and agent.
Baath teaches the herbicidal composition is an oil dispersion formulation using active ingredient MCPA-2-ethylhexyl as sole solvent/oil (e.g., [0017]); and that most oil dispersion matrices use oil based solvents, and especially aromatic solvents (e.g., [0026]).
Baath does not teach the solvent is acetophenone as recited in instant claims 47, 56, 60 and 70, and acetophenone present in a concentration of less than 200 g/L as recited in instant claim 62.
Shroff throughout the reference directs to a high loaded stable agrochemical composition comprising an organized aqueous phase mutually dispersed in a solvent-surfactant system (e.g., Pg. 2, Field of the Invention), to overcome the challenges involved in developing commercially acceptable agricultural composition exhibiting good qualities, e.g., excellent chemical stability (Pg. 2, middle), homogeneous dispersion (Pg. 3, top), synergistic weed control with appropriate herbicide application rates and combinations (Pg. 3, middle -bottom).
Shroff indicates that water soluble herbicides can be used in the compositions including bromoxynil, MCPA, and many others (e.g., Claim 2). Shroff state that a formulation is more eco-friendly comprising a reduced amount of an organic solvent without compromising the physio-chemical stability profile of the formulation (Pg. 5, 1st paragraph). Shroff further teaches that the solvent can be non-polar organic solvent including acetophenone (corresponding to instant claims 47, 56, 60 and 70), C-IX aromatic solvent, or other hydrocarbon/aromatic solvents in the agrochemical dispersion composition (e.g., Claim 7; Pg. 15, bottom) in the form of emulsifiable concentration (EC) (e.g., Claim 12). Shroff teaches that solvent amounts in the formulation, e.g., acetophenone at 15% with 1% hexanol (Pg. 22, Table, A5), acetophenone and C-IX aromatic solvent (70:30) at 12% (Pg. 22, Table, A4) of the total quantity of the dispersion, which would be lower than 200 g/L, resulting from calculation of 15% *1,000 g/L water density = 150 g/L, reading into instant claim 62.
It would be prima facie obvious for a person with ordinary skills in the art prior to filing date to incorporate the solvent from Shroff into the formulation in Baath to arrive at current invention. Baath formulation uses an atypical oil/solvent as herbicide MCPA-2-ethylhexyl itself, it is obvious to swap that out with an aromatic solvent suitable for the formulation because Baath teaches that aromatic solvent is typical oil solvent for the oil dispersion, especially Shroff teaches the aromatic solvent acetophenone can be used for the herbicide dispersion with the desirable properties, e.g., more eco-friendly, chemical stability, homogeneous dispersion, etc., in the safened stable high loaded formulation. Simple substitution of one known element for another to obtain predictable results renders obviousness. See The Supreme Court in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007). Moreover, It is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). For this instance, the solvent amount overlap with that in prior art. Furthermore, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
Claims 38, 41, 43-44, 48, 50-52, 57, 60, 63, 65-66, 68-69 and 72 are rejected under 35 U.S.C. 103 as being unpatentable over Baath et al. (US20200077645, 03/12/2020), as applied to claims 38, 41, 43-44, 48, 50-52, 57, 60, 63, 69 and 72 above, in view of Essig et al. (US20200236925, 07/30/2020).
Baath teaches herbicidal compositions A-D comprising active herbicidal ingredients, bromoxynil octanoate (351.17 g/L), cloquintocet mexyl, flurocypry meptyl, and MCPA-2-ethylhexyl, with multiple emulsifiers, and MCPA-2-ethylhexyl itself as suitable solvent in the oil formulation, as applied to claims 38, 41, 43-44, 48, 50-52, 57, 60, 63, 69 and 72 in great detail above and incorporated herein.
Regarding independent claim 65, Baath teaches bromoxynil formulations A-D comprising bromoxynil at 351.17 g/L (read into more than 210 g/L in instant claim 65), with multiple other active herbicides, more than two emulsifiers, and one solvent as MCPA-2-ethylhexyl, wherein total herbicide amounts add up to 882.41 g/L (Table 1, [0022]) as discussed above, corresponding to more than 525 g/L in instant claim 65. In light of claim interpretation, “highly loaded”, “EC”, “having low flammability and cold stability”, and “suitable” are inherent properties of the formulation and agents.
Regarding instant claim 66, Baath teaches that most oil dispersions use oil based solvents and especially aromatic solvents (e.g., [0026]).
Regarding instant claim 68, Baath teaches emulsifiers can be alkylphenol ethoxylates, castor oil ethoxylates (e.g., Claim 9), salts of dodecylbenzene sulphonate (e.g., Claim 10).
Baath does not teach at least one additional active ingredient other than MCPA as the iso-octyl ester as recited in instant claim 65.
Essig throughout the reference teaches a method of reducing downward migration of a pesticide, such as herbicide (e.g., [0014]), comprising applying a composition in a form of oil-in-water emulsion or an emulsifiable concentrate (e.g., Abstract), wherein the composition comprises a herbicide, a solvent (such as aromatic hydrocarbons, e.g., [0041]), a polymeric emulsifier (e.g., polyethoxylated castor oils, [0045]), and one or more additives, antifoam agents, etc. (e.g., [0017]). Essig teaches that active herbicides can include bromoxynil octanoate, cloquintocet, MCPA, MCPA-isoctyl (same as MCPA iso-octyl ester), fenoprop-isoctyl, mecoprop-isoctyl, picloram-isoctyl (e.g., [0063]).
It would have been prima facie obvious for a person with ordinary skills in the art prior to filing date to select the agents based on combined teachings of Baath and Essig to arrive at current invention. It is well settled that it is a matter of obviousness for one of ordinary skill in the art to select a particular component from among many disclosed by the prior art as long as it is taught that the selection will result in the disclosed effect. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985).
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). For this instance, the active ingredient amounts read into instantly claimed ranges. Furthermore, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
Claim 67 is rejected under 35 U.S.C. 103 as being unpatentable over Baath et al. (US20200077645, 03/12/2020) in view of Essig et al. (US20200236925, 07/30/2020) as applied to Claims 38, 41, 43-44, 48, 50-52, 57, 60, 63, 65-66, 68-69 and 72 above, and further in view of Norbert et al. (TW201513787, 04/16/2015, Machine translation relied upon below; copy attached, PTO-892).
Baath and Essig combined teaching teaches herbicidal composition can comprise more than 210 g/L bromoxynil octanoate (351.17 g/L), and other additional herbicides, e.g., MCPA, cloquintocet mexyl, flurocypry meptyl, fenoprop-isoctyl, mecoprop-isoctyl, picloram-isoctyl, etc., with total active ingredient loading more than 525 g/L (e.g., 882.41 g/L in Baath, Table 1, [0022]), multiple emulsifiers, at least one suitable solvent, e.g., aromatic solvent, in the oil formulation, as applied to claims 38, 41, 43-44, 48, 50-52, 57, 60, 63, 65-66, 68-69 and 72 above in detail, and incorporated herein.
Baath and Essig does not teach the aromatic solvent is a naphtha solvent or a C9-C11 aromatic hydrocarbon as recited in instant claim 67.
Norbert throughout the reference teaches safened herbicidal compositions for use in corn (e.g., [0003]) and also in HPPD inhibitor-tolerant, phytoene desaturase inhibitor (PDS)-tolerant, bromoxynil-tolerant corn crops (e.g., [0034]), to control undesirable vegetation of broad spectrum of weed genera (e.g., [0036]) as discussed above. Norbert teaches liquid carriers used in the composition can be hydrocarbons such as aromatic solvents, vegetable oils such as castor oil, specific solvents such as N-methyl-2-pyrrolidinone (NMP), petroleum naphtha (as a species of naphtha, corresponding to instant claim 67).
It would have been prima facie obvious for a person with ordinary skills in the art prior to filing date to select the agents based on combined teachings of Baath and Essig and Norbert to arrive at current invention. It is well settled that it is a matter of obviousness for one of ordinary skill in the art to select a particular component from among many disclosed by the prior art as long as it is taught that the selection will result in the disclosed effect. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985).
Claim 71 is rejected under 35 U.S.C. 103 as being unpatentable over Baath et al. (US20200077645, 03/12/2020) in view of Shroff et al. (IN2011MU02030, 01/18/2013, PTO-892), as applied to claims 38, 43-44, 47-48, 50-52, 56-57, 60, 62-63, 69-70 and 72 above, further in view of Norbert et al. (TW201513787, 04/16/2015, Machine translation relied upon below; copy attached, PTO-892).
Baath and Shroff combined teaching teaches herbicidal compositions can comprise active ingredient bromoxynil octanoate at about 300 g/L, fluroxypyr meptyl at about 150 g/L (within range 24 g/L to 944 g/L, as discussed above in Baath’s teaching), multiple emulsifiers, aromatic solvent or MCPA-2-ethylhexyl as solvent in the oil dispersion, as applied to claims 38, 43-44, 47-48, 50-52, 56-57, 60, 62-63, 69-70 and 72 and discussed in great detail above and incorporated herein.
Baath and Shroff does not teach emulsifiers as linear dodecylbenzene sulfonate calcium salt and alkoxylated alkylphenols, with solvent 2-ethyl hexanol, or propylene glycol, or both, as interpreted of claim 71 above.
Norbert throughout the reference teaches safened herbicidal compositions that can comprise emulsifiers calcium dodecylbenzene sulfonate (corresponding to dodecylbenzene sulfonate calcium salt) and alkylphenol-alkylene oxide (corresponding to alkoxylated phenol) (e.g., [0050]). Norbert teaches that liquid carriers used in the composition can be hydrocarbons such as aromatic solvents, vegetable oils such as castor oil, specific organic solvents including petroleum naphtha, propylene glycol (e.g., [0048]).
It would have been prima facie obvious for a person with ordinary skills in the art prior to filing date to select the agents based on combined teachings of Baath and Nobert to arrive at current invention. It is well settled that it is a matter of obviousness for one of ordinary skill in the art to select a particular component from among many disclosed by the prior art as long as it is taught that the selection will result in the disclosed effect. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985).
Conclusion
No claim is allowed.
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/DX.Z./ Examiner, Art Unit 1616
/SUE X LIU/ Supervisory Patent Examiner, Art Unit 1616