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 .
Applicants preliminary amendment filed 2/28/2024 has been entered. Claims 1-17, 25, 61, 64 and 71 were amended. Claims 18-24, 26-60, 62, 63 and 65-70 were canceled. Claims 1-17, 25, 61, 64 and 71 remain pending.
Election/Restrictions
Claim 61, 64 and 71 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 6/8/2026.
Applicant’s election without traverse of Group 1, claims 1-17 and 25 in the reply filed on 6/8/2026 is acknowledged.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 4/30/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the examiner.
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 1-17 and 25 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.
Claim 1 recites that “component A is a composition comprising constituent a1), wherein a1) comprises one or more herbicidal active ingredients” and recites “component A is substantially immiscible with water” which is indefinite. It is unclear if constituent a1) inherently is substantially immiscible with water or if another component is necessary in component A to obtain a composition substantially immiscible with water. Therefore, the metes and bounds of the term component A cannot be deciphered. For the purpose of examination the term component A is taken to encompass any herbicide with a solubility of 25 g/L of less in water.
Claim 1 recites “b1) comprises one or more offsite movement controlling agents” which is indefinite. The metes and bounds of the term cannot be deciphered. The specification states that component A can contain oils which function as offsite migration control agents [0070]. The specification also details b1) is selected from drift retarding agents (DRA’s) and volatility control agents including guar-based compounds, fatty acid esters, oils and other polymers [00103-118]. However, b1) is not referred to as an offsite movement controlling agent in the specification or clearly defined. For the purpose of examination the term has been taken to encompass any compound customarily used as an adjuvant in herbicidal formulations.
Claim 1 further recites that “wherein Component A and Component B are physically separate compositions” which is indefinite. The metes and bounds of what this encompasses cannot be deciphered. The components can be physically separate by being present in separate bottles, separate microcapsules or even separate layers of a device. The components can also be physically separate if they are applied in succession. The specification however only describes separate tank mix formulations [0023]. For the purpose of examination the term physically separate is taken to encompass any tank mix formulations and herbicidal mixtures that are applied in succession.
Claim 25 recites “wherein constituent b1) of Component B is selected from the group consisting of constituent b1a) drift retarding agents (DRAs), constituent b1b) volatility control agents” which is indefinite. The metes and bounds of b1) cannot be deciphered. The specification states b1) is selected from drift retarding agents (DRA’s) and volatility control agents including guar-based compounds, fatty acid esters, oils and other polymers [00103-118]. However, b1) how b1a) differs from b1b) cannot be deciphered. For the purpose of examination the terms b1a) and b1b) have been taken to encompass any compound customarily used as an adjuvant in herbicidal formulations.
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.
Claim(s) 1-9 and 11-17 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Griveau et al. (CA 2725376; published December 23, 2009).
Applicant claims a kit comprising Component A and Component B which are physically separate compositions, wherein Component A is a composition comprising a1) one or more herbicidal active ingredients with a solubility of 25 grams or less per 1000 grams of water and Component B comprising b1) one or more offsite movement controlling agents and b2) one or more amphiphilic compounds with a HLB value is equal to are greater than 6. (Claims 1)
Claim 2 is drawn to inherent properties of component A.
With respect to claims 1, 3-9 and 11-17 and 25, Griveau et al. teach herbicidally active compositions which comprise aminopyralid (solubility in water of 2.48 g/L) (herbicide A) and at least one herbicide B (abstract). Herbicide B is selected from acetamides and choroacetanilides simultaneously or in succession (separately) (page 2, lines 15-40; page 23, lines 40-41; limitation of claims 1, 6 & 7). The herbicide aminopyralid can be combined with acetamides selected from dimethenamid, acetochlor, alachlor, butachlor, butenachlor, diethatyl-ethyl, dimethachlor, metazachlor, metolachlor, S-metolachlor, pretilachlor, propachlor, prynachlor, terbuchlor, thenylchlor, xylachlor, propisochlor and naproanilide (page 4, lines 10-27; Table A; limitation of claim 8). The compositions may also comprise one or more safeners selected from benoxacor, cloquintocet, cyprosulfamide and others (page 8, line 8 through page 9, line 4; limitation of claim 11). The compositions may comprise a component d) additional herbicides different from A and B selected from mesotrione, sulcotrione, isoxaflutole, isoxachlortole (page 9, line 9 through page 11, line 20; Table 11; limitation of claim 9). The formulation may be in the form of a two package formulation of pyroxasulfone (solubility in water of 0.00349 g/L) in one and herbicide B in another along with carriers, surfactants and auxiliaries for formulations in a tank mix prior to or upon dilution with water (page 25, line 35 through page 26, line 4). The active ingredients may be formulated as oil dispersions or suspensions including aromatic solvents and ketones (page 26, lines 5-11 and 20-25; page 27, lines 37-42; limitation of claims 5, 13, 16 and 17). Suitable surfactants include polyoxyethylene octylphenol ether (HLB 13) and anionic surfactants such as sodium lauryl sulfate (HLB greater than 40) (page 26, lines 32-42). The concentrations of the active ingredients range from 1-98% (page 28, lines 8-12; limitation of claims 3, 4, 12 and 15).
Griveau et al. teach preparing agronomic mixtures which are initially physically separated in two packages but also teach mixtures and auxiliaries can be added in a tank mix prior to or upon dilution.
Therefore, it would have been prima facie obvious to one of ordinary skill in the art to combine the teachings of Griveau et al. to form a kit wherein constituent a1) is separate from constituent’s b1) and b2) with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Griveau et al. to form a kit with a1) separate from components b1) and b2) because Griveau et al. teach two package systems where active ingredients, carriers, surfactants with HLB greater than 6 are separate and later combined in a tank mix prior to or upon dilution.
Claim(s) 1-6, 10, 12-16 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over of Pentland et al. (WO 2007/143788).
Applicant claims a kit comprising Component A and Component B which are physically separate compositions, wherein Component A is a composition comprising a1) one or more herbicidal active ingredients with a solubility of 25 grams or less per 1000 grams of water and Component B comprising b1) one or more offsite movement controlling agents and b2) one or more amphiphilic compounds with a HLB value is equal to are greater than 6. (Claims 1)
Pentland et al. teach a method of preparing a spray tank mix of glyphosate acid concentrate separate from an alkaline composition and forming a mixture of glyphosate acid concentrate and alkaline compositions (abstract). The glyphosate concentrate is preferably solid particulate which contains at least 50-95% glyphosate (page 4, lines 25-28; limitation of claims 1, 10, 14). The alkaline composition may contain one or more alkali metal bases, fatty amine ethoxylates, alkyl amines, alkanolamines along with adjuvants that are surfactants selected from alkylpolyglucosides, amphoteric surfactants, tallow amine ethoxylates (Terwet 3780 HLB 15) and betaines (page 7, line 20 through page 12, line 12; Table 20). Additional components include crop oils and herbicides including metolachlor, MCPA, 2,4-D, dicamba and triclopyr (page 12, lines 14-23; limitation of claims 6-8, 10, 16 and 25). The first pack contains the alkaline composition and the second pack contains the glyphosate concentrate (page 15, lines 22-30).
Pentland et al. teach preparing two pack systems where the first pack contains an alkaline compositions comprising adjuvants and a second pack containing the glyphosate concentrate which are mixed in a rations from 1:7 to 1:1 (page 16, lines 3-6).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art to combine the teachings of Pentland et al. to form a kit wherein constituent a1) is separate from constituent’s b1) and b2) with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Pentland et al. to form a kit with a1) separate from components b1) and b2) because Pentland et al. teach two package systems where the first pack contains an alkaline compositions comprising adjuvants with HLB greater than 6 and a second pack containing the glyphosate concentrate which are mixed in a rations from 1:7 to 1:1.
Conclusion
No claims allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIELLE D JOHNSON whose telephone number is (571)270-3285. The examiner can normally be reached Monday-Friday 9:00 am-5:30 pm.
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DANIELLE D. JOHNSON
Examiner
Art Unit 1617
/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
