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 .
Specification
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code. Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01.
The use of the terms such as Select Super TM and Arrow Super TM, has been noted in this application. The terms should be accompanied by the generic terminology; furthermore the terms 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.
Claim Objections
Claim 27 objected to because of the following informalities: lack of punctuation and claim wording renders the claim difficult to interpret. Examiner is interpreting the claim as, “The method of claim 20, wherein a regimen for said applying comprises applying said ACCase inhibitor at least once prior to said artificial pollinating, followed by concomitant treatment with said ACCase inhibitor and said artificial pollinating, optionally followed by a second artificial pollinating with or without applying of said ACCase inhibitor.” If Applicant disagrees, appropriate correction is still required, as the current wording is difficult to comprehend.
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, 6, 8-15, 17-22, 27-28 and 32-33 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.
Regarding claim 1, the term “Gold standard” is not defined in the claims nor the specification. The meaning of every term used in a claim should be apparent from the prior art or from the specification and drawings at the time the application is filed. Claim language may not be "ambiguous, vague, incoherent, opaque, or otherwise unclear in describing and defining the claimed invention." In re Packard, 751 F.3d 1307, 1311, 110 USPQ2d 1785, 1787 (Fed. Cir. 2014). In the instant case, neither the claims nor specification provides an objective definition for “gold standard.” Furthermore, Table 1C of the specification provides such numerous “exemplary doses considered Gold standard” ranging from 0 to 1600 g/ha such that the limitation “below or above Gold standard” embraces all dosage amounts. Thus, the scope of the term is not understood when read in light of the specification.
Claim 1 also recites the term “amount authorized by a regulatory agency”. The claims and the specification are silent as to which regulatory agency this term may refer to. Each regulatory agency that may regulate the use of ACCase may authorize different amounts for any given ACCase. Additionally, the authorized amounts of ACCase may vary depending on the use for which the substance is authorized. There is no objective definition or standard contained in the instant disclosure for determining the scope of this limitation. Thus, the scope of the term is not understood when read in light of the specification.
For the purpose of compact prosecution, the term “effective amount” is being interpreted to mean any amount that suppress the growth of weeds [specification pg. 8 line 15].
Regarding claims 6, 8-15, 17-22, 27-28 and 32-33, these claims depend from claim 1 and do not cure the deficiencies of claim 1. Therefore, the aforementioned claims inherit the deficiencies of parent claim 1.
Regarding claim 8, it is unclear whether the recitation of “a predominant amount of at least 20%” indicates that the term “predominant” is defined as an amount of at least 20%, or indicates that, in a given growth area, the majority of least 20% of weed plants are at a time window restricted to flowering. See Merriam-Webster Dictionary, which defines “predominant” as “being the most frequent or common”.
Regarding claim 28, it is unclear whether the phrase “at least once optionally twice or at least twice” refers to the application of ACCase inhibitor, artificial pollination step, or to both steps in conjunction. For the sake of compact prosecution, claim 28 is being interpreted such that the aforementioned language refers to the step of artificially pollinating.
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.
Claim(s) 1, 6, 9-11, 13, 20-22, and 27-28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lidor-Nili (US 2019/208790), published 7/11/2019, cited on the 6/17/24 IDS.
Regarding claim 1, Lidor-Nili teaches a method of weed control (i.e. suppressing growth [0085]) comprising artificially pollinating at least one weed species of interest with pollen of the same species that reduces fitness of said weed species [claim 1], wherein the method further comprises treating the weed with an herbicide [claim 4]. Lidor-Nili teaches that the herbicide can be an ACCase inhibitor [109] and further teaches examples of weed species of interest including those of the Amaranthus species, such as A. albus and A. palmier [0078]. Lidor-Nili does not explicitly disclose that the application of the herbicide is restricted to a time window wherein the weed species of interest is flowering, but the prior art method comprises an artificial pollination step [claim 1], which can only be performed while the weed species of interest is flowering. Lidor-Nili further teaches that the herbicide may be applied prior to, concomitantly with, or following the pollination step [0362]. Thus, it would be obvious to restrict the application of ACCase to the time window concurrent to the artificial pollination step wherein the broadleaf weed species of interest is flowering.
Regarding claim 6, Lidor-Nili teaches that the weed species of interest may be treated with other weed control means, such as herbicides, at any time [0362], which embraces the limitation of applying ACCase at a time window wherein the weed species of interest is devoid of seeds.
Regarding claim 9, Lidor-Nili teaches that the weed species of interest may include those of the Amaranthus genus [0078].
Regarding claim 10, Lidor-Nili teaches that the weed species of interest may be selected from those of the Amaranthus species, including A. albus, A. blitoides, A. hybridus, A. palmeri, A. powellii, A. retroflexus, A.rudis, A. spinosus, A. tuberculatus, and A. viridis; Ambrosia species, including A. trifida, A. artemisifolia; Euphorbia species, including E. heterophylla; Kochia species, including K. scoparia; Conyza species, including C. bonariensis, C. canadensis, C. sumatrensis; Plantago species, including P. lanceolata; Chenopodium species, including C. album; Abutilon theophrasti; Ipomoea species; Sesbania species, Cassia species, Sida species and Solanum species [0078].
Regarding claim 11, Lidor-Nili teaches that the weed species of interest may be Amaranthus palmeri, Amaranthus tuberculatus, Solanum nigrum, Abutilon theophrasti and Conyza bonariensis [0078].
Regarding claim 13, Lidor-Nili teaches that the herbicide may be a cyclohexanedione [0340].
Regarding claim 20, Lidor-Nili teaches a method of weed control comprising artificially pollinating at least one weed species of interest with pollen of the same species that reduces fitness of said weed species [claim 1], wherein the method further comprises treating the weed with an herbicide [claim 4]. Lidor-Nili further teaches that the pollen may be irradiated [claim 32].
Regarding claim 21, Lidor-Nili teaches that the weed may be treated with an ACCase [claim 4][0362], before artificially pollinating [claim 5]. Lidor-Nili further teaches that the herbicide may be applied prior to, concomitantly with, or following the pollination step [0362].
Regarding claim 22, Lidor-Nili teaches that the weed species of interest may be further treated with other weed control means, such as herbicides, at any time [0362] (reads on applying 3-14 days prior to artificially pollinating).
Regarding claim 27, Lidor-Nili teaches that the weed may be treated with an ACCase [claim 4][0362], before artificially pollinating [claim 5]. Lidor-Nili further teaches that herbicide may be applied prior to, concomitantly with, or following pollen treatment [0362]. The application of pollen may be in multiple doses, continuous, or any other application timing methodology [0357]. Lidor Nili teaches that the weed of interest may be further treated with weed controls other than artificial pollination means at any time. Thus, it would be obvious to effect a weed control method with the claimed combination of recited steps.
Regarding claim 28, Lidor-Nili teaches that the weed may be treated with an ACCase [claim 4][0362], before artificially pollinating [claim 5]. Lidor-Nili further teaches that the application of pollen may be in multiple doses, continuous, or any other application timing methodology [0357]. As previously discussed, claim 28 is being interpreted such that “at least once optionally twice or at least twice” refers to the step of artificially pollinating, and not to the step of applying ACCase.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lidor-Nili (US 2019/208790), as applied to claim 1 above, and further in view of Frank (2020).
As discussed above, Lidor-Nili teaches the limitations of claim 1, but does not explicitly teach the recitation of claim 8, “wherein a predominant amount of at least 20% of plants of the weed species of interest in a growth area are at said time window at said applying.”
Regarding claim 8, Frank teaches that the flowering period of several broadleaf weed species is the optimal time window to kill them with herbicide application [page 3]. It would be obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the teachings of Lidor-Nili with that of Frank. While Frank does not explicitly teach applying herbicide to a growth area wherein a predominant amount of at least 20% of plants of the weed species of interest are at said flowering window, it would be obvious to apply the claimed method when a predominant amount of the patient population meets a condition conducive to optimizing the effectiveness of the method. Furthermore, "[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).
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lidor-Nili (US 2019/208790), as applied to claim 1 above, and further in view of Fisher et al. (CA2217655A1) published 10/10/1996.
As discussed above, Lidor-Nili teaches the limitations of claim 1, but does not explicitly teach the recitation of claim 12 wherein the method is effected “at a growth area of at least an acre and optionally not exceeding 50,000 acres.”
Regarding claim 12, Fisher discloses herbicidal compositions comprising aza-bisphosphonic acid and a method for controlling undesirable growth of plants [pg. 1]. Fisher teaches that the optimum application amount for any given compound will depend upon the nature of the plants to be controlled, and the rate of application may vary from about 0.01 to about 10 pounds per acre. [pg. 14 para. 3] Given that the rate of application is denoted in pounds per acre, the prior art suggests application of herbicide to a growth area of at least an acre. It would be obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the teachings of Nidor-Lili with that of Fisher to perform the claimed weed control method on a growth area of at least an acre, since weed control methods are applied to crop fields in order to prevent weed damage to crops.
Claim(s) 13-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lidor-Nili (US 2019/208790), as applied to claim 1 above, and further in view of Ader et al. (US 2016/0330965 A1), published 11/17/2016, cited on the 6/17/24 IDS.
As discussed above, Lidor-Nili teaches the limitations of claim 1, but does not explicitly teach the use of specific ACCases recited in claims 13-14.
Regarding claims 13-14, Ader teaches that ACCase inhibitor herbicides may include members of the chemical families of aryloxyphenoxypropionates, cyclohexanediones and phenylpyrazolines [0021]. Ader further discloses that the cyclohexanedione may be clethodim [0021]. It would be obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the teachings of Lidor-Nili with that of Ader to select an ACCase inhibitor from compounds known in the prior art to be suitable ACCase inhibitors used for the purpose of weed control.
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lidor-Nili (US 2019/208790), as applied to claim 1 above, and further in view of by Fisher et al. (CA2217655A1) published 10/10/1996 and Karczewski et al. (WO 2007/050090 A1), published 5/3/2007, cited on the 6/17/24 IDS.
As discussed above, Lidor-Nili teaches the limitations of claim 1, but does not explicitly teach the recitation of claim 15, wherein the ACCase inhibitor is clethodim and the effective amount of 0.05 to 5 grams/liter.
Regarding claim 15, 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. "[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). Furthermore, Fisher (previously cited) teaches that the formulation and mode of application for any given herbicide composition may affect its activity. Herbicidal formulations may contain as little as about 0.5% to as much as 95% or more by weight of active ingredient. The rate of application can vary from about 0.01 to about 10 pounds of herbicide per acre. Thus, selection of the herbicide and its application will be made accordingly. [pg. 14 para. 3]. Karczewski further teaches that the appropriate dosage of clethodim may vary with crop, weed type, weather conditions, and application method, and could be determined by one or ordinary skill in the art [47].
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lidor-Nili (US 2019/208790), as applied to claim 1 above, and further in view of Stromberg et al. (March 2007).
As discussed above, Lidor-Nili teaches the limitations of claim 1, but does not explicitly teach the recitation of claim 17, wherein the ACCase is applied when the weed species of interest is present in an amount greater than 40 plants per acre.
Regarding claim 17, Stromberg teaches that yellow starthistle (a broadleaf weed) in a density of 20 plants/acre may become the dominant plant in a growth area in a year if not treated with herbicide [page 263, Table 2.1]. The instant limitation recites applying herbicide when the density of the weed species of interest is above 40 plants/acre. It would be obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the teachings of Lidor-Nili with that of Stromberg and apply the claimed weed control method to an area in which the density of weeds is above 40 plants/acre. Given that a lower density of broadleaf weeds than the density recited in the instant claim has the potential to become the dominant plant in a growth area without herbicide treatment, it would be similarly advantageous to treat an area with a higher density of weeds due to the potential for greater propagation of the weed population due to the potential to develop a larger seed bank resulting from the higher weed density.
Claim(s) 18 and 32-33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lidor-Nili (US 2019/208790), as applied to claim 1 above, and further in view of Otsubo et al. (US 2006/0183642 A1), published 8/17/2006, and further in view of Zhang et al. (WO 2016/196130), published 12/8/2016 (both cited on the 6/17/24 IDS).
As discussed above, Lidor-Nili teaches the limitations of claim 1, but does not explicitly teach the recitation of claim 18, wherein the ACCase application is in a growth area comprising crop.
Regarding claim 18, Otsubo teaches the application of an herbicidal composition to crop fields [0020]. It would be obvious to one having ordinary skill in the art, before the effective filing date of the claimed composition, to modify the teachings of Lidor-Nili with that of Otsubo to apply ACCase inhibitor to a growth area comprising crop to control the growth of weeds, because weeds are known to be undesirable and compete with crops for nutrients, sunlight, and soil [Zhang 0044].
As discussed above, Lidor-Nili teaches the limitations of claim 1, but does not explicitly teach the recitation of claims 32-33, wherein the ACCase is applied to a crop environment wherein the crop is selected from the group consisting of several listed species.
Regarding claims 32 and 33, Otsubo further teaches that the herbicide may be applied to crop fields including soybean, cotton, sugarbeet, and peanut [0020]. It would be obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the teachings of Lidor-Nili with that of Otsubo to apply the claimed method to a crop environment known to be suitable for the application of herbicide.
Claim(s) 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lidor-Nili (US 2019/208790), as applied to claim 1 above, and further in view of Dong et al. (2021).
As discussed above, Lidor-Nili teaches the limitations of claim 1, but does not explicitly teach the recitation of claim 19 wherein the crop is modified to be ACCase inhibition-resistant.
Regarding claim 19, Dong teaches that ACCase inhibitor-resistant crops have been developed using CRISPR/Cas9-mediated gene editing [page 4, Table 1]. It would be obvious to one having ordinary skill in the art to combine the teachings of Lidor-Nili with that of Dong to modify the crops to which ACCase inhibitor is applied to be resistant to ACCase inhibitor in order to control weed proliferation and increase crop productivity [page 1, Introduction].
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMANDA LYNN CHI whose telephone number is (571)272-0026. The examiner can normally be reached Monday - Friday 9 am-5pm ET.
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/AMANDA LYNN CHI/Examiner, Art Unit 1613
/JENNIFER A BERRIOS/ Primary Examiner, Art Unit 1613