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 .
Priority
It is noted that “no foreign data information” is listed in the patent data portal listing under continuity and foreign data.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 6/5/24 (2) and 9/12/25 (2) have been considered by the examiner.
Status of the Claims
Claims 6, 7, 12, 14, 15, 17-19, 23, 25, 27, 28, 33, and 34 have been canceled by preliminary amendment. The preliminary amendment filed 6/16/2026 lists claims 1-5, 8-11, 13, 16, 20-22, 24, 26, and 29-32 as pending and under current examination.
Claim Rejections - 35 USC § 112
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.
Claims 9, 26, and 30 are 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 9 depends from a canceled claim 6. 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 26 recites “at least about 10%” in the last line of the claim. The terms “at least” coupled with “about” obfuscates the endpoints of the claimed range such that it unclear what values are included and excluded. Appropriate clarification is required.
Regarding claim 30, 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 30 recites the broad recitation sections of unwanted vegetation which is a monocotyledonous weed, and the claim also recites specific examples following “sedges such as”, the names following which constitute 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 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 1-5, 8, 10, 11, 13, 16, 20-22, 24, 26, and 29-32 are rejected under 35 U.S.C. 103 as being unpatentable over US 20140038824 (Unkefer et al., hereafter “Unkefer”).
The instant claims are drawn to a method comprising applying to a target area an herbicidally effective amount of an herbicide composition comprising an herbicide selected from a lipid synthesis inhibitor, an amino acid synthesis inhibitor, a nitrogen metabolism inhibitor, a growth regulator inhibitor, and a combination thereof; and applying an herbicide safener composition comprising pyroglutamic acid (PGA) and/or 2-oxogutaramate at a concentration of less than 1 g/L, as further specified in the claims including a target area specified to contain plants of cultivated crops selected from specialty crops, sugar crops, legumes, and a combination thereof.
Unkefer teaches application of prolines for improving growth and/or yield of target plants (see title and abstract). Unkefer’s compositions include L- and D-pyroglutamate stereoisomers and a carrier medium (see abstract, in particular)(limitations of claims 1 and 31)
. Unkefer specifically teaches that a result of the stepwise administration of the PGA isomers desirably increases resistance to stress from herbicides to the target plants. For instance, in Unkefer’s Example 7, monocotyledonous crop plants, oats particularly, were treated with 2,4-D, and subsequently pyroglutamate was administered to measure mitigation of plant stress induced from the 2,4-D application (see [0041]); Unkefer’s oats are not taught or considered to be genetically modified (limitation of claim 16). 2,4-D is noted to be a growth regulator inhibitor type herbicide (limitations of claims 21 and 22). Unkefer teaches target plants to include oats and legumes/clover for instance alike (see Unkefer claim 10 as well as Unkefer Example 8 at [0045])(limitation of claim 13). As to the pyroglutamate, Unkefer’s L- and D- stereoisomers are included in a respective ratio of from about 80:20 to 95:5 (Unkefer claim 6), an overlapping range of instantly claim 20.
Unkefer does not teach the benefit or result that is controlled growth of undesired vegetation in a target area as recited in the preamble of claim 1, however Unkefer renders obvious the claimed method because Unkefer teaches the application of claimed components to a target area as claimed. As to the intended use of the claimed method steps, it is the examiner’s position that the reason or motivation to modify the reference may suggest what the inventor has done, but for a different purpose or to solve a different problem; it is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.
Unkefer does not teach the PGA component to be applied at the instantly claimed concentration range in particular. However, Unkefer considered as a whole reasonably suggests a concentration within the claimed range. At paragraph [0034] and Example 4, Unkefer specifies that the initial pyroglutamate composition was prepared at a concentration of 13.7 grams per liter and referenced as “standard solution”, and, subsequently, dilutions of 1/10, 1/100, and 1/1000 of the standard solution were prepared . Accordingly, it would have been prima facie obvious to try these dilutions of PGA amount, ranges overlapping with the instate claimed ranges in claims 1-3, with a reasonable expectation of success. One would have been motivated to do so as part of routine optimization procedure based on Unkefer’s example dilutions to achieve the desired end result (see Unkefer Example 4 for instance).
Further regarding claim 4, Unkefer indicates the measurement of crop development (see [0038]); regarding claim 5, Unkefer appears to teach the structural components instantly claimed and as to the comparative effects further recited in claim 5, the office does not have the facilities for examining and comparing Applicant’s product with the product of the prior art in order to establish that the product of the prior art does not possess the same material, structural and functional characteristics of the claimed product. In the absence of evidence to the contrary, the burden is upon the applicant to prove that the claimed products are functionally different than those taught by the prior art and to establish patentable differences. See Ex parte Phillips, 28 USPQ 1302, 1303 (BPAI 1993), In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977) and Ex parte Gray, 10 USPQ2d 1922, 1923 (BPAI 1989).
Regarding claims 8, 10, 11, and 29, Unkefer teaches the formulation may be applied to plants, seeds, or proximal soil (see [00109]).
Regarding claim 24, Unkefer recommends a rate of 25 grams/acre in Example 6 (see [0040]), a stoichiometric unit conversion which equals 0.062 kg/ha, a value within the instantly claimed range.
Regarding claim 26, Unkefer’s standard solution which is 14.7 grams per liter equals a value of 3.62 gallons per liter, which may be applied in a concentration as a standard solution or diluted (see Example 4) and may be applied at a rate of 25 grams per acre (see Example 6), thereby providing rationale for applying at a rate within the instantly claimed range of 0.1 to 10 gallons per acre or a field strength of at least about 10% of the label rate.
Regarding claim 30, Unkefer teaches application to morning glory (see [0045]), another name for Ipomoea spp.
Regarding claim 32, Unkefer’s standard solutions are considered a ready to use formulation.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AUDREA B CONIGLIO whose telephone number is (571)270-1336. The examiner can normally be reached Monday - Thursday 7:00 a.m. - 5:30 p.m..
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Hartley can be reached at 5712720616. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AUDREA B CONIGLIO/Primary Examiner, Art Unit 1617
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