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 .
DETAILED ACTION
Claim Status
The amended claim set of 22 Mar 2024 has been entered and reviewed
Claims 1-23 have been amended.
Claims 1-23 are pending.
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-9, directed to a process for the preparation of a stable agrochemical oil dispersion, in the reply filed on 28 May 2026 is acknowledged. Applicants also elected that the active ingredient is the combination of flucarbazone, amicarbazone, and sulfentrazone, the rheological additive is bentonite, and the second herbicide/active is clodinafop in response to the species election requirement. A reason for the traversal was not provided. The examiner maintains that the technical feature between the groups is not a special technical feature as described in the restriction requirement.
The requirement is still deemed proper and is therefore made FINAL.
Claims 7 and 10-23 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention. The examiner notes that claim 7 is directed to a single herbicide flucarbazone-sodium instead of the elected combination of herbicides.
Claims 1-6, 8, and 9 are under consideration to the extent of the elected species, i.e., that the active ingredient is the combination of flucarbazone, amicarbazone, and sulfentrazone, the rheological additive is bentonite, and the second herbicide/active is clodinafop.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d).
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 22 Mar 2024 is in compliance with the provisions of 37 CFR 1.97, except where noted. Accordingly, the information disclosure statement is being 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, 2, 3, 5, 6, and 8 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 2, 3, and 8 recite the limitation "said active ingredient". There is insufficient antecedent basis for this limitation in the claim. Base claim 1 recites “at least one active ingredient”, which encompasses multiple active ingredients, and it is unclear whether “said active ingredient” includes just one or more than one active ingredient. Amending the claims to recite “the at least one active ingredient” would overcome this rejection.
Claim 5 recites “said oil dispersion” and “the oil dispersion” which lacks proper antecedent basis. Claim 1 has two oil dispersions, one prepared in step (1) and an agrochemical oil dispersion prepared in step (3). It is unclear if the/said oil dispersion as recited in claim 5 is intended to refer to the dispersion of step (1) or to the agrochemical oil dispersion.
Claim 6 recites “the dispersion” in step (1) which lacks proper antecedent basis. Claim 1 has two oil dispersions, one prepared in step (1) and an agrochemical oil dispersion prepared in step (3). It is unclear if the dispersion as recited in step (1) of claim 6 is intended to refer to the dispersion of step (1) or to the agrochemical oil dispersion of claim 1.
Claim 6 recites in step (1) “the oil phase” which lacks proper antecedent basis. Claim 1 recites an oil phase in step (1) and in step (2) and it is unclear which oil phase “the oil phase” is intended to refer to.
Claim 8 is unclear in the recitation of “said active ingredient in the dispersion” as claim 1 has a dispersion in step (1) and an agrochemical oil dispersion in step (3) and it is unclear if “the dispersion” is intended to refer to the dispersion of step (1) or to the agrochemical oil dispersion.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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 1-6, 8 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Faers et al. (US 2018/0235208, published 23 Aug 2018) in view of Choo et al. (Applied Clay Science 108 (2015) 182–190) and Maeda et al. (US 2018/0027806, published 01 Feb 2018).
Faers teaches an oil-based suspension concentrate comprising at least one agrochemical active compound, low density particles, one or more rheological modifiers, and one or more water immiscible fluids ([0012-0015]). Faers teaches that a large amount of rheological modifier can lead to increased viscosity which can make it hard to empty from the pack and a product that disperses poorly in a spray tank ([0002]) and Faers teaches the compositions are not dense and highly viscous and hard to re-homogenize and but have a low viscosity allowing the product to easily empty from the pack and disperse in the spray tank ([0011], [0064]). Faers teaches the oil suspension concentrates as having improved dispersion in a spray tank ([0074]). Faers teaches a process of mixing the components to form a suspension and then grinding the suspension and then adding the low density particles ([0053]). Faers teaches preparing a pre-gel of components b) and d) ([0054], [0059], [0139]) which are the rheological modifier ([0018]) and the water immiscible fluid ([0020]) which includes oils such as vegetable or mineral ([0094]) and then adding pre-gel to the suspension after the grinding step ([0054], [0139]). Faers further teaches the active and oil composition as undergoing milling before adding the rheology modifier composition ([0139]). These steps are understood to render obvious forming an oil suspension (i.e an oil dispersion) of active components and a separate composition of the rheological modifier in oil and milling the active ingredient composition and then mixing the separate compositions together, as in steps (1)-(3) in instant claim 1 and steps (1)-(4) of claim 6. Faers teaches the active ingredient particles have a size preferably between 0.5 and 10 μm ([0056]), rendering obvious the particle size of claim 8. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). Faers teaches that the oil-based suspension is stable after relatively long storage ([0061]). Faers teaches that the active compounds are solid at room temperature ([0076]) and include all substances customary for plant treatment whose melting point is above 20°C including herbicides ([0077]) and teaches a variety of exemplary compounds ([e.g. [0078]-[0087]). Faers teaches that the rheological modifier may be bentonite ([0090]), rendering obvious the elected species of rheological modifier as in claim 4. Faers teaches that the rheological modifier is from 1-80 g/L ([0018]) and teaches example formulations such as Example 23 where a 10% pre-gel composition of Bentone® 34 (a rheological modifier) was mixed with active components to a final concentration of 5.13 g/L ([0239] example 23C). The 5.13g/L of the modifier in example 23C represents a concentration of about 0.55% (5.13 g/L Bentone34 / 939.17 g/L total components *100) which indicates approximately 5.5% of the rheological modifier pre-gel composition (0.55%/10%*100) was added to the final composition, rendering obvious the 5-15% of claim 5.
Faers does not teach the elected species of active component (amicarbazone, flucarbazone, and sulfentrazone) and does not teach preparing the colloid mixture of rheological additive to a viscosity of 3500-5000 cps or storing the rheological additive mixture for 5 to 7 hours. These deficiencies are made up for in the teachings of Choo and Maeda.
Choo teaches the rheological properties of bentonite suspensions (title) and that bentonite forms colloids (page 182 left column) and teaches that viscosity increased with increasing bentonite concentration and storage time (abstract). Choo teaches that a bentonite suspension has a significant thixotropy and a high viscosity and yield stress at a very dilute concentration (page 183 left column). Choo demonstrates the viscosity of bentonite suspensions varying with concentration and time, for example ranging between hundreds to thousands of cP over time periods of fresh, 2, 6, 12, 24, 48, and 72 storage hours (e.g. Fig 5, page 189 Table 3).
Maeda teaches an oily suspension composition (title). Maeda teaches the oily suspension composition comprises an agrochemical active ingredient and components such as a thickener ([0007], [0009]) where the thickener may be bentonite ([0011]). Maeda teaches that the active ingredient is preferably solid at room temperature 20°C ([0045]) and teaches Maeda teaches that agrochemical active ingredients may include herbicides including amicarbazone ([0055]), sulfentrazone ([0057]), and flucarbazone ([0058]).
Therefore, it would have been prima facie obvious to one of ordinary skill in the
art, before the effective filing date of the claimed invention to have a process of forming an oil based suspension with active components of amicarbazone, flucarbazone, and sulfentrazone and a rheological modifier of bentonite where the active component and bentonite are each prepared in an oil phase and subsequently mixed to form an agrochemical oil suspension. Oil based suspensions formed by combining compositions of active and oil component with a pre-gel oil composition of rheological modifier such as bentonite is known from Faers. It is further known from Faers that all substances customary for plant treatment such as herbicides are suitable as the active components in the compositions and it is further known from Maeda that amicarbazone, flucarbazone, and sulfentrazone are herbicide compounds suitable for use in oily suspension compositions. Thus, it would have been obvious to one of ordinary skill in the art to include amicarbazone, flucarbazone, and sulfentrazone as the active component in the process obvious from Faers as these are herbicidal components known for use in oily suspensions. Faers teaches a variety of compounds for the compositions and leaves it open to other known plant treatment herbicide type compounds providing a reasonable expectation of success in including these compounds. Regarding the limitations that the colloid mixture of the rheological additive in the oil phase has a viscosity of 3,500-5,000 cps and that the mixture is obtained by storing for 5 to 7 hours, in view of the teachings of Faers that the viscosity is an important parameter for proper performance of the composition and the teaching of Choo that the viscosity of bentonite suspensions is variable with the storage time, the viscosity and storage times are an art-recognized result effective variables such that determining that the viscosity is between 3,500-5,000 cps and that the mixture is obtained by storing for 5 to 7 hours would be a matter of optimization through routine experimentation. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is known from Faers that the amount of rheological modifier affects viscosity and it is known that the overall viscosity can impact performance of properties such as removing the composition from a package and the sprayability of the composition. Thus, it is obvious to one of ordinary skill that controlling the viscosity of the solutions is an important parameter to optimize. The storage time of bentonite suspensions affects the viscosity of the suspensions rendering it obvious to monitor and control the storage time for these compositions. Thus, based on these teachings from Faers and Maeda it is known that the viscosity and storage time of bentonite suspensions are related and it would have been obvious to adjust these parameters to achieve the desired optimal composition, such as optimal dispersion for a spray tank. Thus, the limitations are obvious as a matter of routine experimentation.
Conclusion
No claim is allowed.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EDWIN C MITCHELL whose telephone number is (571)272-7007. The examiner can normally be reached Mon-Fri 8:00-5:00.
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/EDWIN COLEMAN MITCHELL/Examiner, Art Unit 1619
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