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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-3, 5-7, 11, 13, 15, 18, 19, as well as fatty acid esters as the oily drift retardant and cationic-modified galactomannan as the polymer drift retardant, readable on claims 1-3, 5-7, 11, 13, 15, 18, 19, 21, 23, 26-31 and 34, in reply filed on 06/08/2026 is acknowledged.
Claims 21, 23, 26-31 and 34 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 06/08/2026.
Claim Rejections - 35 USC § 112 – Indefiniteness
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 1-3, 5-7, 11, 13, 15, 18-19 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.
Instant claims 1 and 13 recite “comprising or consisting of” which renders the claims indefinite because it is not clear what is necessary for the invention. Comprising is open claim language which indicates that additional components will not destroy the function of the composition. On the other hand, “consisting of” is closed claim language which excludes any additional components. Thus, it is unclear what the inventive composition may include while still functioning as claimed. One cannot determine the metes and bounds due to the disagreement of transitional phrases and so it is not clear how far from the base composition one can deviate and still meet the requirement of the claim. For the purposes of examination the claim will be interpreted as a composition “comprising” the claimed components.
Regarding claims 2, 3, 6, 13, 18, , the phrase "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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.
1) Claim(s) 1-3, 5, 7, 11, 13, 15, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Hemminghaus et al. (WO 2018/013721 A1, publication date 01/18/2018) as evidence by Guo et al. (Journal of Colloid and Interface Science, 2006, v. 298, p. 441-450), PubChem (isopropyl myristate, PubChem, 2026 [retrieved 07/07/2026], https://pubchem.ncbi.nlm.nih.gov/compound/Isopropyl-Myristate), Stepan (STEPFAC 8182, Stepan, 2026 [retrieved 07/08/2026], https://www.stepan.com/content/stepan-dot-com/en/products-markets/product/STEPFAC8182.html), Stepan product bulletin (STEPFAC product bulletin, Stepan, 2018) and Nouryon (Arquad 2C-75 Product data sheet, Nouryon, 2022).
Regarding instant claim 1-3, 5, 7, 11, 13, and 15, Hemminghaus discloses non-water-continuous pesticide microemulsions comprising (a) an oil phase comprising a lipophilic component (i.e., oil-continuous microemulsion; instant claim 3); “(b) an aqueous phase comprising an aqueous solution comprising a salt of a weak-acid, ionic pesticide; and ( c) a stabilizing surfactant comprising an oil-soluble or oil-dispersible anionic surfactant, wherein the microemulsion composition has a non-water-continuous microemulsion microstructure” [abstract & p. 80, claim 58]. “[W]herein the lipophilic component is selected from the group consisting of organic solvents, fatty acid esters” [p. 82, claim 75]. Suitable fatty acid ester oils for the lipophilic component include isopropyl myristate (i.e., fatty acid ester oil drift retarding agent; instant claims 1 and 5) [0047]. In the examples, Hemminghaus discloses “Non-water-continuous herbicidal microemulsion compositions were prepared in accordance with the General Formulation Procedure. Details of the compositions are presented in Table XXVIII […] The primary stabilizing surfactant was an ethoxylated phosphate ester surfactant, STEPFAC 8182, as described in Example 16. The compositions also include a cationic-modified, polysaccharide polymer, guar gum” (i.e., cationic-modified galactomannan polymeric drift retarding agent; instant claims 1 and 7) [p. 59, para. 0193]. In addition to the primary surfactant STEPFAC 8182 and the cationic-modified guar gum, composition of Table XXVIII which formed a microemulsion comprised 5 and 10% w/w hexylene glycol (i.e., alkyl glycol having 6 carbons in an amount from 5-20% w/w, as per claim 15; see p. 59, Table XXVIII, Comp. No. 18-6 and 18-18).
HLB may be calculated by using the following formula, as evidenced by Guo at page 441, column 1:
PNG
media_image1.png
27
607
media_image1.png
Greyscale
Wherein the groups are assigned a value as shown at Table 1 on page 443:
PNG
media_image2.png
515
1397
media_image2.png
Greyscale
STEPFAC 8182 is a tridecyl alcohol ethoxylated phosphate ester having 12 ethylene oxide units (i.e., phosphate ester; instant claim 11), as evidenced by Stepan.
STEPFAC 8182 comprises as phosphate monoesters of an alkyl polyethoxyethanol (i.e., polyethoxylated mono C13-alkyl phosphate ester; instant claim 13), as evidenced by Stepan Product Bulletin.
As such, STEPFAC 8182 comprises twelve ethylene oxide groups (-CH2CH2O-), one -O- group from the phosphate ester, twelve -CH2- groups and one -CH3 group. Thus, according to the Davis method of calculating HLB values, STEPFAC 8182 would have had an HLB of more than 6.085 (see below) because the full hydrophilic degree of the entire phosphate ester group is not entirely accounted for.
HLB = 7 + ( 12(0.33) + 1.3) + ( 12(-0.475) + (-0.475)) = 6.085.
The instant specification further supports the fact that STEPFAC 8182 is a amphiphilic compound as recited in instant claims 1, 2, 11 and 13. See, for example, the instant specification at paragraphs [0135] and [0150], respectively:
“If the emulsifying surfactant comprises a single amphiphilic compound, the hydrophilic-lipophilic balance (HLB) value of the said amphiphilic compound is typically in the range of about 7 to about 18”;
“Generally, polyethoxylated mono C10-C16-alkyl phosphate esters or salts thereof are commercially available, such as for example polyoxyethylene (12) monotridecyl ester phosphate as Stepfac 8182 (Stepan). Particularly typically, constituent b2) comprises or consists of polyoxyethylene (12) monotridecyl ester phosphate” (i.e., STEPFAC 8182 by itself fulfills the HLB requirements for component b2).
Thus, STEPFAC 8182 is a polyethoxylated mono C8-C22-alkyl phosphate ester per claims 11 and 13, which suffices as component b2, per claims 1, having a hydrophilic-lipophilic balance (HLB) per claims 1 and 2.
Isopropyl myristate suffices as the instantly claimed oily drift retarding agent because it is a fatty acid ester, as per claim 5 and is insoluble in water, as per claim 1, as evidenced by PubChem at pages 12-13.
Hemminghaus does not anticipate the instant claims because it does not disclose all the claimed components in one example or embodiment.
However, given the disclosure of each component individually, it would have been prima facie obvious for a person having ordinary skill in the art at, before the effective filling date of the claimed invention, to have selected and combined known components for their established functions with predictable results by following the teachings of Hemminghaus. MPEP 2143 and 2144.06(I).
Additionally, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). In the present case, the instantly claimed range of an HLB value of 6 or more overlaps with the prior art (at least 6.085) and so a prima facie case of obviousness exists. Similarly, the instantly claimed amount of alkyl glycol (5-20% w/w; instant claim 15) overlaps with the prior art (5% w/w and 10% w/w) and so a prima facie case of obviousness exists.
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filling date of the claimed invention, to have formulated an oil-continuous emulsion comprising an oily drift retarding agent substantially insoluble in water, a polymeric drift retarding agent, an amphiphilic compound with a hydrophilic-lipophilic balance (HLB) within the instantly claimed ranges and a 4-10 carbon alkylene glycol in the instantly claimed amounts (hexylene glycol). Wherein the oily drift retarding agent is a fatty acid ester (isopropyl myristate). Wherein the polymeric drift retarding agent is a cationic-modified galactomannan (cationic modified guar gum). Wherein the amphiphilic compound is a phosphate ester, specifically a polyethoxylated mono C8-C22-alkyl phosphate ester (STEPFAC 8182).
While STEPFAC 8182 is understood to read on component b2 per claims 1 and 2, the exact HLB value of STEPFAC 8182 is not disclosed. However purely arguendo, the HLB value per claims 1 and 2 would have also been obvious over the prior art.
Hemminghaus discloses “[t]he microemulsion compositions of the present invention can further comprise an auxiliary surfactant” [0079] and that “[e]xamples of suitable cationic auxiliary surfactants include quaternary ammonium salt surfactants such as ARQUAD T-50 and ARQUAD 2C-75” (see last sentence of [0082], page 22).
ARQUAD 2C-75 has an HLB value of 17, as evidenced by Nouryon.
Given the disclosure of each component individually, it would have been prima facie obvious for a person having ordinary skill in the art at, before the effective filling date of the claimed invention, to have selected and combined known components for their established functions with predictable results by following the teachings of Hemminghaus. MPEP 2143 and 2144.06(I). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have formulated the composition taught by Hemminghaus as discussed above to further comprise an amphiphilic compound (surfactant) having a HLB value greater than 6 and in the range from 7 to about 18.
Regarding instant claim 19, Hemminghaus discloses that “[t]he herbicidal compositions described herein can further comprise an additive to control or reduce potential herbicide volatility […] additives to control or reduce potential herbicide volatility include monocarboxylic acids, or salts thereof (e.g., acetic acid and/or an agriculturally acceptable salt thereof” (i.e., salt of a C1-C10 monocarboxylic acid; instant claim 19, component b1b-1) [0143].
Given the disclosure of each component individually, it would have been prima facie obvious for a person having ordinary skill in the art at, before the effective filling date of the claimed invention, to have selected and combined known components for their established functions with predictable results by following the teachings of Hemminghaus. MPEP 2143 and 2144.06(I). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have formulated the composition taught by Hemminghaus as discussed above to further comprise a salt of a C1-C10 monocarboxylic acid (agriculturally acceptable salt of acetic acid).
2) Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Hemminghaus et al. (WO 2018/013721 A1, publication date 01/18/2018) as evidence by Guo et al. (Journal of Colloid and Interface Science, 2006, v. 298, p. 441-450), PubChem (isopropyl myristate, PubChem, 2026 [retrieved 07/07/2026], https://pubchem.ncbi.nlm.nih.gov/compound/Isopropyl-Myristate), Stepan (STEPFAC 8182, Stepan, 2026 [retrieved 07/08/2026], https://www.stepan.com/content/stepan-dot-com/en/products-markets/product/STEPFAC8182.html), Stepan product bulletin (STEPFAC product bulletin, Stepan, 2018) and Nouryon (Arquad 2C-75 Product data sheet, Nouryon, 2022) as applied to claims 1-3, 5, 7, 11, 13, 15, and 19 above, and further in view of Liu et al (US 2019/0133117 A1, publication date 05/09/2019).
Hemminghaus, which is taught above, differs from the instant claims insofar as it does not disclose the molecular weight of the polymeric drift retarding agent. Hemminghaus does desire guar gum as a drift retarding agent (see end of [0142] on page 38). Additionally, as discussed above, Hemminghaus disclosed compositions comprising cationically-modified guar gum (p. 59, [0193]). Hemminghaus also discloses that the compositions may comprise alkylene glycols “selected from the group consisting of propylene glycol; hexylene glycol; 1,3- propanediol; 1,4-butanediol; 1,3-butanediol; and mixtures thereof” [0116]. Finally, Hemminghaus desires a composition with a viscosity no greater than 1000 cps [p. 81, claim 67].
Liu discloses a pesticidal and herbicidal composition comprising an “incompletely hydrated drift control agent suspended in a liquid medium; (iii) optionally, a hydration inhibitor component” such as a glycol [abstract]. “[W]herein the drift control agent comprises a guar derivative, the guar derivative comprising cationic guar” [p. 27, claim 10]. According to Liu, suitable glycols include propylene glycol, 1,3-propanediol, 1-4-butanediol, and 1,3-butanediol [0353]. Liu discloses that “[g]uar gum typically has a weight average molecular weight of between 2,000,000 and 5,000,000 g/mol. Guars having a reduced molecular weight, such as for example, from about 50,000 to about 2,000,000 g/mol are also known” [0280]. Finally, Liu disclosed the viscosity of the compositions is “especially from about 10 to about 1,000 cP” [0374].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
In the present case, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have selected the cationic guar gum drift control agent of Liu as the guar gum drift control agent desired by Hemminghaus because according to Liu the guar gums disclosed therein are suitable drift control agents for agrochemical compositions. One would have had an expectation of success because Liu discloses the guar gums are suitable for compositions comprising glycols and having a viscosity less than 1000 cps, as desired by Hemminghaus.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). In the present case, the instantly claimed range of 100,000 Dalton or more overlaps with the range of the prior art (50,000-5,000,000) and so a prima facie case of obviousness exists.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have formulated the compositions taught by Hemminghaus and discussed above wherein the guar gum as a molecular weight within the instantly claimed range.
3) Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Hemminghaus et al. (WO 2018/013721 A1, publication date 01/18/2018) as evidence by Guo et al. (Journal of Colloid and Interface Science, 2006, v. 298, p. 441-450), PubChem (isopropyl myristate, PubChem, 2026 [retrieved 07/07/2026], https://pubchem.ncbi.nlm.nih.gov/compound/Isopropyl-Myristate), Stepan (STEPFAC 8182, Stepan, 2026 [retrieved 07/08/2026], https://www.stepan.com/content/stepan-dot-com/en/products-markets/product/STEPFAC8182.html), Stepan product bulletin (STEPFAC product bulletin, Stepan, 2018) and Nouryon (Arquad 2C-75 Product data sheet, Nouryon, 2022) as applied to claims 1-3, 5, 7, 11, 13, 15, and 19 above, and further in view of Volgas et al. (US 2007/0032382 A1, publication date 01/08/2007).
Hemminghaus, which is taught above, differs from the instant claims insofar as it does not disclose a emulsion wherein the mean droplet diameter is 0.003-0.05 microns. However, Hemminghaus desires microemulsions [abstract] and the examples discussed above are all disclosed to be microemulsions (see p. 59, [0193] and Table XXVII, comp. no. 18.6).
Volgas relates to agrochemical compositions [abstract] and disclose that “[m]icro-emulsions contain oil droplets that are 10-100 nm in diameter” [0011]. Volgas also discloses that “[i]n agricultural chemical formulation, it is generally recognized that formulations that form micro-emulsions are more effective at enhancing the efficacy of the active pesticide. Micro-emulsion formulations are also more phytotoxic than traditional macro-emulsion formulations” [0012].
It would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have formulated the micro-emulsions desired by Hemminghaus to have a mean droplet size from 10-100 nm as disclosed by Volgas. One would have been motivated to combined these prior art elements because Volgas disclosed emulsion droplet size between 10 and 100 nm is suitable for agrochemical microemulsions. One would have had a reasonable expectation of success because Hemminghaus discloses microemulsions. Additionally, in combining these elements one would have expected nothing more than predictable results because, when combined by known methods, each prior art element would have performed the same function as it had separately. See MPEP 2143, Exemplary Rationale A.
Furthermore, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). In the present case, the instantly claimed range of mean droplet size from 3nm to about 50nm overlaps with the range taught by the prior art (10-100 nm) and so a prima facie case of obviousness exists.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have formulated the microemulsion compositions taught by Hemminghaus, as discussed above, wherein the droplet size of the emulsion is within the instantly claimed range.
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.
1) Claims 1-3,5-7,11,13,15 and 18-19 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17, 25, 61, 64 and 71 of copending Application No. 18/687,373 (US20240423197A1) in view of Liu et al (US 2019/0133117 A1, publication date 05/09/2019), Hemminghaus et al. (WO 2018/013721 A1, publication date 01/18/2018).
This is a provisional nonstatutory double patenting rejection.
The copending claims discloses a kit comprising Component A and Component B [claim 1]. Wherein Component A is substantially insoluble in water [claim 1] and comprises fatty esters (i.e., fatty acid esters) [claim 17]. Wherein Component B comprises a amphiphilic compound with an HLB of 6 or greater [claim 1], a drift retarding agent and volatility control agents [claim 25]. The copending claims also disclose mixing Components A and B [claim 61].
The copending claims do not disclose a polymeric drift retarding agent and do not discloses the presently elected drift retarding agent (cationic-modified galactomannan).
Liu relates to pesticidal compositions comprising a drift control agent [abstract]. “[W]herein the drift control agent comprises a guar derivative, the guar derivative comprising cationic guar” [p. 27, claim 10].
Hemminghaus relates to non- water-continuous pesticidal microemulsions [abstract] and discloses that guar gum is a suitable drift control agent (p. 38, [0142]) and salts of acetic acid are suitable volatility control agents [0143]. Hemminghaus also discloses that addition of C2-C1-glycols improve chemical stability of the compositions [0116].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07. In the present case it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have selected the cationic guar gum (i.e., a galactomannan) as the drift reducing agent desired by the copending claims because Liu and Hemminghaus teach cationic guar gum is a suitable drift control agent for herbicidal compositions.
Similarly, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have selected the acetic acid salt of Hemminghaus for the volatility control agent because Hemminghaus discloses it is suitable for that purpose.
It also would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have combined the alkyl glycols of Hemminghaus with the compositions disclosed by the copending claims. One would have been motivated to, and had an expectation of success in combining these prior art elements because Hemminghaus discloses the alkyl glycols improve chemical stability of pesticidal compositions. See MPEP 2143, Exemplary Rationale A.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have formulated a composition comprising an oily drift retarding agent (fatty acid ester), a polymeric drift retarding agent (cationic guar gum) and an amphiphilic compound having an HLB value of 6 or greater.
2) Claims 1-3,5-7,11,13,15 and 18-19 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-36 of U.S. Patent No. US12550892B2 in view of Liu et al (US 2019/0133117 A1, publication date 05/09/2019), and Hemminghaus et al. (WO 2018/013721 A1, publication date 01/18/2018).
The conflicting claims recite an herbicidal composition comprising an oil continuous phase which may comprise an ester with a carbon content of at least 12 [claim 1] and “wherein the composition further comprises one or more surfactants having an HLB value of greater than 7” [claim 34].
The conflicting claims do not disclose a fatty acid ester and a polymeric drift retarding agent.
Liu relates to pesticidal compositions comprising a drift control agent [abstract]. “[W]herein the drift control agent comprises a guar derivative, the guar derivative comprising cationic guar” [p. 27, claim 10]. Liu discloses that “Drift control agents can be defined as chemical agents that enhance drift control of spray applied pesticide composition and/or provides "anti-rebound" properties to the spray applied pesticide composition, that is, reduces rebound of the spray applied pesticide from a target substrate, such as e.g., the foliage of a target plant” [0008].
Hemminghaus relates to non- water-continuous pesticidal microemulsions [abstract] and discloses that guar gum is a suitable drift control agent (p. 38, [0142]) and salts of acetic acid are suitable volatility control agents [0143]. Hemminghaus also discloses that addition of C2-C1-glycols improve chemical stability of the compositions [0116]. Hemminghaus also disclosed that the ester isopropyl myristate is suitable for the lipophilic component of the oil phase [0047].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07. In the present case it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have selected the isopropyl myristate of Hemminghaus as the ester for the nonaqueous liquid desired by the conflicting claims because Hemminghaus discloses isopropyl myristate is suitable for the oil phase of a pesticidal composition.
It also would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have combined the cationic guar gum drift reducing agent of Liu with the compositions disclosed by the copending claims. One would have been motivated to make this combination because Liu disclosed they provide the desirable anti-rebound properties. One would have had an expectation of success because guar gum was disclosed a suitable in agrochemical compositions. Additionally, in combining these elements one would have expected nothing more than predictable results because, when combined by known methods, each prior art element would have performed the same function as it had separately. See MPEP 2143, Exemplary Rationale A.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have formulated a composition comprising an oily drift retarding agent (isopropyl myristate), a polymeric drift retarding agent (cationic guar gum) and an amphiphilic compound having an HLB value of 6 or greater (7 or greater).
Conclusion
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/C.T.W./ Examiner, Art Unit 1612
/WALTER E WEBB/ Primary Examiner, Art Unit 1612
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