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 .
Claim Objections
Claims 12, 15, 17 and 18 are objected to because of the following informalities: Claims 12, 15, 17 and 18 recite the limitation applied during one of early post-emergence and postemergence, which should be written as “during one of early post-emergence or postemergence”. Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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 5, 6, and 11 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.
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, claims 5 and 6 recites the broad recitation “comprises,” and the claim also recites “selected from the group consisting of” which is 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 11 recites the limitation "the crop plants" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 11 depends from claim 9 which recites crops of useful plants. It is unclear if the crop plants refer to only crops of useful plants, as in claim 9, or all crop plants.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-9, 11, 12 and 14-18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Shroff et al., (WO 2020/039366 A1, Feb. 27, 2020) (hereinafter Shroff).
Shroff discloses an herbicidal combination comprising (a) mesotrione (i.e., one or more aroylcyclohexanedione herbicides), (b) phenmedipham, and (c) at least one microtubule assembly inhibitor herbicide such as oryzalin (i.e., further herbicides) (Claim 6 and Embodiment 388 on page 32). The combination is used in a method of controlling weeds at a locus wherein the combination is applied to the locus (Claim 8). The locus includes the vicinity of desired crop plants wherein the weed infestation has either emerged or is yet to emerge and the term crop includes a multitude of desired crop plants or an individual crop plant growing at a locus (i.e., post-emergence of a useful crop plant) (page 7, lines 6-9). The constituent herbicides of the combination of the present invention may be admixed in ratio of (1-80): (1-80): (1-80) of the three herbicides respectively (page 40, lines 7-9). The herbicidal combination may be used to target weeds among the crops such corn (page 40, lines 15-16). The herbicidal combinations can be provided as a pre mix or tank mixed (page 41, lines 16-17) applied by spraying (i.e., a ready to use diluted spray application mixture) (page 45 lines 16-17). The advantage of the combination is quick knockdown when applied post emergent leading to quick control of weeds (page 45, lines 10-12). The method also provides a broader spectrum of controlling weeds that helps in resistance management, thus preventing the weed from becoming resistant to either of the herbicides while providing a broader spectrum of control at lower use rates (page 46 line 30 – page 47 line 2).
Accordingly, Shroff anticipates the instant claims insofar as disclosing an herbicidal combination comprising (a) mesotrione (i.e., one or more aroylcyclohexanedione herbicides) and (b) phenmedipham (Claim 6 and Embodiment 388 on page 32) for use in a method of controlling weeds at a locus wherein the combination is applied to the locus (Claim 8) which includes the vicinity of desired crop plants wherein the weed infestation has either emerged (i.e., the area on which the weed plants are growing) (page 7, lines 6-9) and the desired (i.e., useful) crop plant is corn (page 40, lines 15-16).
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 13 is rejected under 35 U.S.C. 103 as being unpatentable over Shroff et al., (WO 2020/039366 A1, Feb. 27, 2020) (hereinafter Shroff).
The teachings of Shroff are discussed above. Shroff does not teach wherein phenmedipham is applied at an application rate of from about 12.5 g/ha to about 400 g/ha and/or the one or more aroylcyclohexanedione herbicides is applied at an application rate of from about 12.5 g/ha to about 300 g/ha.
Regarding claim 13, as discussed above, Shroff teaches that the method of applying an herbicidal combination comprising (a) mesotrione (i.e., one or more aroylcyclohexanedione herbicides) and (b) phenmedipham also provides a broader spectrum of controlling weeds that helps in resistance management, thus preventing the weed from becoming resistant to either of the herbicides while providing a broader spectrum of control at lower use rates. Thus, one of ordinary skill in the art would have arrived at the claimed application rates through routine experimentation based on the application rate necessary to control weeds while preventing resistance, as taught by Shroff. 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. See MPEP 2144.05(II)(A).
Conclusion
Claims 1-9 and 11-18 are rejected.
No claims are allowable.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Samantha J Knight whose telephone number is (571)270-3760. The examiner can normally be reached Monday - Friday 8:30 am to 5:00 pm ET.
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/S.J.K./Examiner, Art Unit 1614
/TRACY LIU/Primary Examiner, Art Unit 1614