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 .
Status of Claims
A new claim set was filed on 7/6/26 with the following:
Amended claims
1, 7, 9-10, 12-13
Newly canceled claims
2-3
Newly added claims
Previously canceled claims
Previously withdrawn claims
Claims under instant examination
1 and 4-16
Withdrawn Claim Objections/Rejections
All rejections pertaining to claims 2-3 are moot because the claims were cancelled in view of the amendments filed on 7/6/26.
The objection to claim 9 for minor informalities is hereby withdrawn in view of the claim amendments filed on 7/6/26.
The rejections of claims 1, 3-14 and 16 under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention are hereby withdrawn in view of the claim amendments filed on 7/6/26.
The rejections of:
claims 1 and 8-16 under 35 U.S.C. 103 as being unpatentable over US EPA (Label Amendment – Adding a grazing restriction; Product name: Axial Bold Herbicide; EPA Reg. No. 100-1632; Letter dated 3/6/20), as evidenced by Syngenta (Safety Data Sheet: Axial Bold Herbicide; revision date: 3/8/23), and in view of Arand et al. (J Agr Food Chem, 2018, 66(23), 5770-5777)
claims 1-2 and 7-16 under 35 U.S.C. 103 as being unpatentable over US EPA (Label Amendment – Adding a grazing restriction; Product name: Axial Bold Herbicide; EPA Reg. No. 100-1632; Letter dated 3/6/20), as evidenced by Syngenta (Safety Data Sheet: Axial Bold Herbicide; revision date: 3/8/23), and in view of Jadhav et al. (US 2016/0066570; published: 3/10/16)
are hereby withdrawn in view of the claim amendments filed on 7/6/26.
Terminal Disclaimer
This application was filed on or after September 16, 2012. The person who signed the terminal disclaimer is not the applicant, the patentee or an attorney or agent of record. See 37 CFR 1.321(a) and (b).
A POA that gives the power to the attorney signed the TD needs to be filed and also, resubmit TD (no fee is required).
Claim Objections
Claim 15 is objected to because of the following informalities: the Examiner suggests deleting a duplicate “a” in line 3.
Appropriate correction is required.
Maintained 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 obviousness-type 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); and 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 a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 1-16 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-14 of copending Application No. 18/716,748 in view of US EPA (Label Amendment – Adding a grazing restriction; Product name: Axial Bold Herbicide; EPA Reg. No. 100-1632; Letter dated 3/6/20). Although the conflicting claims are not identical, they are not patentably distinct from each other because both claim sets are drawn to the same composition comprising 1-10% by weight pinoxaden, 10-40% by weight built-in oil adjuvant (e.g., polypropylene glycol stearyl ether of formula: R–(O–CH2CH(CH3))n–O–R1, wherein n is from 5-18, R is C16 to C16 straight- or branched-chain alkyl, R1 is H or methyl), a cloquitocet-mexyl safener, wherein the form is an EC or OD and the composition comprises substantially no TEHP. Furthermore, both claim sets are drawn to a method of making the abovementioned composition by combining the ingredients and a method of inhibiting or controlling undesirable plant growth, by applying the abovementioned composition to the plants or their habitat. The difference is that the copending application recites an additional component to the composition: fenoxaprop-p-methyl. However, such combination is routinely used in the prior art, as evidenced by US EPA: Axial Bold Herbicide. Therefore, it would have been obvious to one of ordinary skill in the art to substitute the pinoxaden only herbicide composition with the combination of pinoxaden and fenoxaprop-p-methyl, which would allow control of more pest species. Thus, the instant claims and the application claims are obvious variants.
This is a provisional obviousness-type double patenting rejection because the conflicting claims have not in fact been patented.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GENEVIEVE S ALLEY whose telephone number is (571)270-1111. The examiner can normally be reached Monday-Friday 8:00-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Blanchard can be reached at 571-272-0827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/GENEVIEVE S ALLEY/ Primary Examiner, Art Unit 1617
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