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 with traverse of Group I, claims 1-5, 7-8 and 10 in the reply filed on 06/18/2026 is acknowledged. The traversal is on the ground(s) that as shown in the amendments filed, the claims are directed to an adjuvant composition that includes choline chloride and a mixture of betaines, however Zhang teaches cocamidopropyl betaine which does not read on the carboxy betaines of the present claims. Applicants further argue that a synergistic effect is demonstrated by the Examples of the specification as filed which have the mixture of the two betaines. Inventive examples 8-14 and 17 of the specification demonstrate that the betaines and choline chloride as claimed accelerates the uptake of agrochemicals. Applicants continue to argue that other zwitterionic surfactants, such as a hydroxysultaine, which is also disclosed in Zhang, does not necessarily demonstrate improved penetration, therefore one of ordinary skill in the art would not have necessarily expected success from Zhang’s broader teaching, nor have been motivated to select the betaines as claimed. This is not found persuasive. Insomuch as this may be an assertion of unexpected results, please refer to MPEP 716.02(b) which details the burden on Applicant to establish that results in a side-by-side comparison to the closest prior art are unexpected and significant. Specifically, Applicant must establish that differences in results are in fact unexpected and unobvious and are of both practical and statistical significance. Additionally, evidence of unexpected properties must be commensurate in scope with the claims. In the instant case, the data of record does not appear to show statistical or practical significance. In view of the data present in the instant specification, tables 1 and 2, Examples 7 and 8 wherein Applicants claim that Example 7 is outside of their invention does not have statistical difference when compared to Example 8 which is Applicants claimed invention. Applicant’s Example 7 has a standard deviation of 1 and Applicant’s Example 8 has a standard deviation of 2.5, therefore there is an overlap in the penetration depth results, therefore there is no statistical difference. Applicant’s Example 12 has a standard deviation of 4, even with the same amount of active ingredient as Example 7, the penetration depth results is still close, therefore there is no statistical difference. Applicants data is also not commensurate in scope with the instant claims because it is not clear from the data that the only effect on penetration depth is a result of the instantly claimed betaine mixture and presence of choline chloride. The Examiner points out that based on Applicants examples, it appears that it is not just the mixture of the betaines as the only factor changing the penetration depth, but also the amount of the active ingredient (i.e., liberty) as the amount of the active ingredient is different in Examples 7 and 8. Applicants Examples 7 and 12 have the same amount of active ingredient but the ratio of betaine to choline chloride is not the same. Therefore, it is not clear from the data that if the amount of an active ingredient or the ratio of betaine to choline chloride in the prior art composition is adjusted, would it achieve the same level of penetration depth, as there is no side by side comparison to Zhang’s composition with the same amount of active ingredient or ratio of betaine to choline chloride. The Examiner further points out that that Applicants are adjusting variables throughout and nothing is consistent for a proper side-by-side comparison.
The requirement is still deemed proper and is therefore made FINAL.
Status of the Claims
Claims 2-4, 6, 9, and 13 have been cancelled. Claims 1, 5, 7-8, 10-12 and 14-24 are pending. Claims 11-12 and 14-23 have been withdrawn.
Claims 1, 5, 7-8, 10 and 24 are currently under examination.
Information Disclosure Statement
Initialed and dated copies of Applicants’ information disclosure statement (IDS) filed on 05/16/2024 is attached to the instant Office action. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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, 5, 7, 10, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (CN111820214A; Published 10/27/2020; cited in IDS filed 05/16/2024).
Applicant’s invention
The Applicant’s claims are drawn to an agricultural adjuvant composition for herbicides, comprising: at least one betaine compound; and choline chloride, wherein a weight percent ratio of the at least one betaine compound relative to the choline chloride ranges from 1:8 to 8:1, wherein the at least one betaine compound comprises a mixture of carboxy betaines, the mixture of betaines comprising lauryl betaine and myristyl betaine.
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claims 1 and 24, Zhang teaches the invention relates to an agricultural additive (i.e., agricultural adjuvant) containing a eutectic solution, which comprises the following components in parts by weight: 1-99 parts of a surfactant and 99-1 parts of a eutectic solution; the eutectic solution comprises a hydrogen bond acceptor compound and a hydrogen bond donor compound in a mass ratio of 1: 1-10 (abstract). Zhang also teaches wherein the choline salt is choline chloride, and the betaine is betaine hydrochloride (paragraph 13), wherein the surfactant is more than one of anionic surfactant, cationic surfactant, double-ion surfactant (i.e., zwitterionic surfactant) or non-ion surfactant (paragraph 18). Zhang continues to teach an agricultural adjuvant comprising a choline salt and a betaine (claim 4). Zhang further teaches in Example 8, 100g of choline chloride and then 200g of cocamidopropyl betaine to obtain a viscous liquid (Example 8). The examiner points out that 200g of cocamidopropyl betaine to 100g of choline chloride is a ratio of 2:1. Zhang also teaches the zwitterionic surfactant is selected from, without limitation, the group consisting of C8-C1 amidopropyl betaines, such as, but not limited to, lauryl betaine, myristyl betaine, cocamidopropyl betaine, cocamidopropyl hydroxysultaine (paragraph 22).
Regarding claims 5 and 7, The non-limiting selection of the anionic surfactant wetting agent includes alkyl sulfates such as sodium lauryl ethoxy sulfate (i.e., sodium lauryl ether sulfate) (paragraph 20).
Ascertainment of the Difference Between Scope the Prior Art and the Claims
(MPEP §2141.02)
Zhang does not disclose a single embodiment or example where every limitation recited in the instant claims are taught.
Finding of Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
The claims are considered prima facie obvious to one of ordinary skill in the art because
Zhang teaches all of the claimed elements. It would have been prima facie obvious at the time of filing to have an agricultural adjuvant composition for herbicides, comprising: at least one betaine compound; and choline chloride, wherein a weight percent ratio of the at least one betaine compound relative to the choline chloride ranges from 1:8 to 8:1, wherein the at least one betaine compound comprises a mixture of carboxy betaines, the mixture of betaines comprising lauryl betaine and myristyl betaine because Zhang teaches these elements as components of their invention.
With regards to the limitation wherein the at least one betaine compound comprises a mixture of carboxy betaines, the mixture of betaines comprising lauryl betaine and myristyl betaine, it would have been obvious to one of ordinary skill to have the mixture of lauryl betaine and myristyl betaine as the at least one betaine compound. Zhang teaches in Example 8, 100g of choline chloride and then 200g of cocamidopropyl betaine to obtain a viscous liquid (Example 8). The examiner points out that 200g of cocamidopropyl betaine to 100g of choline chloride is a ratio of 2:1. Zhang also teaches the zwitterionic surfactant is selected from, without limitation, the group consisting of C8-C1 amidopropyl betaines, such as, but not limited to, lauryl betaine, myristyl betaine, cocamidopropyl betaine, cocamidopropyl hydroxysultaine (paragraph 22). The artisan of ordinary skill would have been motivated to have the mixture of lauryl betaine and myristyl betaine because Zhang teaches wherein the surfactant is more than one of anionic surfactant, cationic surfactant, double-ion surfactant (i.e., zwitterionic surfactant) or non-ion surfactant (paragraph 18). Zhang also teaches in Example 8 the use of cocamidopropyl betaine but also teaches that the zwitterionic surfactant can be lauryl betaine and myristyl betaine. Zhang also teaches the surfactants play roles of wetting, dispersing, emulsifying, solubilizing, spreading and defoaming in the preparation process (paragraph 2), therefore having more than one surfactant would improve the wetting, dispersing, emulsifying, solubilizing, spreading and defoaming in the preparation process. The skilled artisan would have had a reasonable expectation of success because Zhang teaches the use of zwitterionic surfactants and teaches that cocamidopropyl betaine, lauryl betaine and myristyl betaine are all zwitterionic surfactants, therefore they are functional alternatives, that can be used in Zhang’s agricultural adjuvant.
With regards to the limitation wherein no more than 30 wt% of the adjuvant composition is a component other than betaines, choline chloride, and water, it would have been obvious to optimize the amounts of the other components in Zhang’s agricultural adjuvant. Zhang teaches an agricultural additive containing a eutectic solution comprises the following components in parts by weight: 1-99 parts of a surfactant (i.e., zwitterionic surfactants) and 99-1 parts of a eutectic solution (i.e., comprising choline chloride). Therefore, it would have been obvious to optimize amounts of the other components in Zhang’s agricultural adjuvant by routine experimentation to achieve the desired results by using Zhang’s teachings as a starting point. Where 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, 105 USPQ 233 (CCPA 1955). In addition, according to the MPEP, “It is to be presumed also that skilled workers would as a matter of course, if they do not immediately obtain desired results, make certain experiments and adaptations, within the skill of the competent worker.” (MPEP 716.07).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (CN111820214A; Published 10/27/2020; cited in IDS filed 05/16/2024) in view of Bayer (Crop Science Canada, Published 09/08/2021).
Applicant’s invention
Zhang renders obvious all the limitations of claim 1. Applicants claim 8 further adds the limitations wherein the agricultural adjuvant further comprises ammonium sulfate as a hydration control agent.
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claim 8, Zhang teaches the invention relates to an agricultural additive (i.e., agricultural adjuvant) containing a eutectic solution, which comprises the following components in parts by weight: 1-99 parts of a surfactant and 99-1 parts of a eutectic solution; the eutectic solution comprises a hydrogen bond acceptor compound and a hydrogen bond donor compound in a mass ratio of 1: 1-10 (abstract). Zhang also teaches wherein the choline salt is choline chloride, and the betaine is betaine hydrochloride (paragraph 13), wherein the surfactant is more than one of anionic surfactant, cationic surfactant, double-ion surfactant (i.e., zwitterionic surfactant) or non-ion surfactant (paragraph 18). Zhang continues to teach an agricultural adjuvant comprising a choline salt and a betaine (claim 4). Zhang further teaches in Example 8, 100g of choline chloride and then 200g of cocamidopropyl betaine to obtain a viscous liquid (Example 8). Zhang also teaches in application, the medicament comprises an insecticide, a bactericide, a plant growth regulator, a herbicide or a foliar fertilizer (paragraph 36).
Ascertainment of the Difference Between Scope the Prior Art and the Claims
(MPEP §2141.02)
Zhang does not teach the agricultural adjuvant further comprising ammonium sulfate as a hydration control agent. However, this deficiency is cured by Bayer.
Bayer teaches adjuvants play an important role in herbicide formulations and spray mixtures to help herbicide performance either by improving herbicide activity or ease of application. Herbicide labels are the most important source of information for adjuvant recommendations that cover diverse use situations and tank mixtures. Adjuvants are specific for each product as researched and developed by the herbicide manufacturers. Adjuvants include spreaders, stickers, wetting agents, penetrants, stabilizing agents, compatibility agents, buffering agents, anti-foam agents, and others (What is the function of adjuvants in herbicides? Section). Bayer also teaches certain nitrogen fertilizers can serve as adjuvants when applied at recommended rates, improving herbicide activity under challenging conditions. Common examples include: ammonium sulfate (AMS) (Ammonium Nitrogen Fertilizers). Bayer also teaches water-conditioning adjuvants (e.g., ammonium sulfate) bind minerals and improve herbicide uptake (Water Quality section). Bayer further teaches herbicide adjuvants play a critical role in improving spray coverage, uptake, and overall weed control while maintaining crop safety (Conclusion section).
Finding of Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
It would have been prima facie obvious to one of ordinary skill in the art at the time of filing to have ammonium sulfate in Zhang’s agricultural adjuvant. Zhang teaches the medicament comprises an insecticide, a bactericide, a plant growth regulator, a herbicide or a foliar fertilizer (paragraph 36), wherein the invention has the beneficial effects that: the agricultural auxiliary agent containing the eutectic solution is easy to synthesize, low in price, biodegradable, environment-friendly, low in volatility, designable in structure, high in viscosity, high in specific gravity, good in moisture retention, strong in dissolving capacity and the like, improves the moisture retention of liquid medicine, enhances the anti-drift capacity of the liquid medicine, and enhances the biological permeability; after biodegradation, urea can supplement plant nutrition and promote plant growth (paragraph 38). The artisan of ordinary skill would have been motivated to add ammonium sulfate because Bayer teaches adjuvants play an important role in herbicide formulations and spray mixtures to help herbicide performance either by improving herbicide activity or ease of application (What is the function of adjuvants in herbicides? Section). Bayer also teaches certain nitrogen fertilizers can serve as adjuvants when applied at recommended rates, improving herbicide activity under challenging conditions. Common examples include: ammonium sulfate (AMS) (Ammonium Nitrogen Fertilizers). Bayer also teaches water-conditioning adjuvants (e.g., ammonium sulfate) bind minerals and improve herbicide uptake (Water Quality section). Bayer further teaches herbicide adjuvants play a critical role in improving spray coverage, uptake, and overall weed control while maintaining crop safety (Conclusion section). The skilled artisan would have had a reasonable expectation of success because Zhang teaches formulating an agricultural adjuvant wherein the medicament comprises an insecticide, a bactericide, a plant growth regulator, a herbicide or a foliar fertilizer (paragraph 36), which has the beneficial effects good in moisture retention, strong in dissolving capacity and the like, improves the moisture retention of liquid medicine, enhances the anti-drift capacity of the liquid medicine, and enhances the biological permeability; after biodegradation, urea can supplement plant nutrition and promote plant growth (paragraph 38) and Bayer teaches that nitrogen fertilizers can serve as adjuvants when applied at recommended rates, improving herbicide activity under challenging conditions. Common examples include: ammonium sulfate (AMS) (Ammonium Nitrogen Fertilizers). Bayer also teaches water-conditioning adjuvants (e.g., ammonium sulfate) bind minerals and improve herbicide uptake (Water Quality section).
Conclusion
No claims are allowed.
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AFUA BAMFOAA BOATENG Examiner, Art Unit 1617
/ALI SOROUSH/ Supervisory Patent Examiner, Art Unit 1614
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