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 .
Summary
Receipt of Applicant’s Preliminary Amendments filed on 6/12/2024 is acknowledged.
Claims 1-26 are pending and under examination in this application.
Priority
Acknowledgment is made of applicant’s claim for priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. EP21215119.5, filed on 12/16/2021.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 07/15/2024 is in compliance with the provisions of 37 CFR 1.98. Accordingly, the information disclosure statements has been considered by the examiner. Signed copies have been attached to this office action.
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.
Claims 7, 15 and 22 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 claims 7 and 22, recitation of the phrase “more preferably” is in a manner that renders claim scope uncertain. Specifically, claim 7 recites that herbicide A is “selected from the group consisting of clomazone, dimethenamid-P, metolachlor, S-metolachlor, pyroxasulfone and saflufenacil, more preferably selected from clomazone, metolachlor, S-metolachlor, and saflufenacil.” The phrase “more preferably” does not define the claim with reasonable certainty because it is unclear whether the “more preferably” clause further limits the claim (restricting the Markush group to four compounds) or is merely a statement of preference outside the claim scope. See MPEP § 2173.05(o).
Similarly, claim 22 recites the undesirable vegetation is selected from a list of genera that transitions to a “more preferably selected from” subset without clearly indicating whether that subset constitutes a mandatory limitation. As amended, the “even more preferably,” “yet more preferably,” “still more preferably,” and “in particular” language has been removed from claim 22, but “more preferably selected from the genera Cyperus, Echinochloa, Leptochloa, Ammannia, Bacopa, Heteranthera, and Schoenoplectiella” remains. This “more preferably” clause renders the metes and bounds of claim 22 uncertain for the same reasons stated for claim 7.
Claim 15 recites "applied shortly before or shortly after emergence of the undesirable vegetation." The term "shortly" is a relative term of degree that does not provide a definite time boundary, particularly in a rice paddy environment where weed emergence can be asynchronous over days or weeks. No objective standard for "shortly" is provided in the specification.
Applicant is advised to replace “more preferably” with a definite transitional phrase such as “selected from the group consisting of” or to remove such language entirely if not intended to limit the claims.
Appropriate correction is required.
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.
Claim(s) 1, 2, 3, 4, 8, 9, 10, 14, 15, 16, 17, and 19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Fogleman et al., "Influence of Formulation and Rate on Rice Tolerance to Early Season Applications of Acetochlor," Weed Technology 33:239 245 (2019), hereinafter referred to as “Fogleman”.
Fogleman teaches a method for controlling undesirable vegetation in an aquatic rice environment (flooded rice paddy) (Abstract; p. 240, col. 1 (“clay soil… flooded”)). Fogleman applies acetochlor, a herbicide A explicitly listed in claim 1, as a microencapsulated (ME) formulation (p. 240, col. 1), corresponding to claims 8 and 10. Fogleman applies acetochlor pre-emergence of weeds (p. 241, Table 1, “PRE”) and early post-emergence (p. 241, “early POST”), meeting claim 1’s “pre-emergence or early post-emergence of the undesirable vegetation.” Fogleman applies after rice germination, with rice at the 1.5- to 2-leaf stage for POST applications (p. 240, col. 2), meeting claims 16 (2-leaf to 6-leaf stage) and 19 (5 to 15 days after sowing). Fogleman applies into water (p. 240, col. 2: “flood was established … maintained at a 5- to 10-cm depth” with applications made over the flood), meeting claim 2. Fogleman discloses application rates of 420, 840, and 1680 g ai/ha (0.42 to 1.68 kg ai/ha) (Table 1), within claim 17’s range of 0.0001 to 10 kg ai/ha. Fogleman controls Echinochloa crus-galli (barnyardgrass) and Cyperus difformis (p. 242, Table 2; p. 243), weed species recited in claims 22 and 23. Thus, each and every limitation of the above-identified claims is disclosed in Fogleman when read upon the acetochlor embodiment of claim 1. Claims 5 and 6 are addressed under 35 U.S.C. § 103 below, as acetochlor is not recited in the species subsets of those claims.
Claim(s) 1, 2, 3, 4, 6, 7 (as to saflufenacil), 9, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 (as to saflufenacil combinations), and 26 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Camargo et al., "Rice (Oryza sativa L.) response and weed control from tank mix applications of saflufenacil and imazethapyr," Crop Protection 31:94 98 (2011), hereinafter referred to as “Camargo”.
Camargo teaches a method for controlling weeds in flooded rice (Abstract; p. 94, col. 2: "soil was flooded"). Camargo applies saflufenacil, a herbicide A explicitly recited in claim 1 and claim 7, at rates of 25, 50, 75, 100 g ai/ha (0.025 to 0.1 kg ai/ha) (Table 1), meeting claims 17 and 18. Camargo applies after rice germination when rice was at the two leaf to three leaf stage (p. 95, col. 1), meeting claim 16. Camargo applies into flood water (p. 95, col. 1: "applications were made directly to the flood water"), meeting claim 2. Camargo controls Echinochloa crus galli, Cyperus difformis, Ammannia coccinea, and Heteranthera limosa (Table 4; p. 97, col. 1), weeds recited in claim 23. Camargo explicitly addresses herbicide resistant weeds, stating that "saflufenacil will be an important tool for managing ALS resistant weeds" (p. 97, col. 2), meeting claims 20 and 21 (HRAC Group B, ALS inhibitors). Thus, each and every limitation of the above identified claims is identically disclosed in Camargo when read upon saflufenacil.
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) 1-26 are rejected under 35 U.S.C. 103 as being unpatentable over Fogleman "Influence of Formulation and Rate on Rice Tolerance to Early Season Applications of Acetochlor," Weed Technology 33:239 245 (2019) (hereinafter referred to as “Fogleman”) in view of Camargo "Rice (Oryza sativa L.) response and weed control from tank mix applications of saflufenacil and imazethapyr," Crop Protection 31:94 98 (2011) (hereinafter referred to as “Camargo”).
The teachings of Fogleman in view of Camargo are noted above in the 102 rejection section. Notably, Fogleman itself tested multiple herbicide classes under the same experimental design (including clomazone, Fogleman Table 1), establishing that routine screening of different herbicides in the same flooded rice paddy method was standard practice, supporting an “obvious to try” rationale under KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007).
A. Obviousness of Herbicides A from the Same Mode-of-Action Groups as Acetochlor and Saflufenacil.
Regarding claim 1, the claim recites a method for controlling undesirable vegetation in an aquatic environment in which a rice plant is growing, comprising applying an herbicidally effective amount of an herbicide A pre-emergence or early post-emergence of the undesirable vegetation and after germination of the rice seedlings, wherein herbicide A is selected from a group consisting of over 80 herbicides (including acetochlor and saflufenacil). Fogleman teaches a method for controlling undesirable vegetation in a flooded rice paddy (Abstract; p. 240, col. 1 ("clay soil… flooded")) by applying acetochlor (a herbicide A specifically listed in claim 1) pre-emergence or early post-emergence of weeds (p. 241, Table 1, "PRE" and "early POST") and after rice germination (p. 240, col. 2: "rice was at the 1.5 to 2 leaf stage for the POST applications"). Camargo teaches the same method using saflufenacil (another herbicide A listed in claim 1) in flooded rice (Abstract; p. 94, col. 2 ("soil was flooded")), applied after rice germination (p. 95, col. 1: "rice plants were at the two leaf stage"), pre-emergence or early post-emergence of weeds (Table 4, showing weed control data from applications made at rice two to three leaf stage, before weeds had emerged or at early growth stages). Because Fogleman and Camargo collectively teach the method of claim 1 for two distinct herbicides A (acetochlor and saflufenacil), one of ordinary skill would have found it obvious to apply any other herbicide A from the same or similar mode-of-action groups (e.g., other VLCFA inhibitors or PPO inhibitors) using the identical method taught in Fogleman and Camargo. The specification provides no unexpected results or criticality for any particular herbicide A beyond those already taught in the prior art. To the extent claim 1 covers herbicides A from different mode-of-action groups, the teaching of Fogleman and Camargo that the claimed timing (post-rice-germination, pre-early-post-weed-emergence) works for both a Group 15 herbicide (acetochlor) and a Group 14 herbicide (saflufenacil) would have motivated one of ordinary skill to test other herbicides that are known to be safe for rice when applied at similar timings, with a reasonable expectation of success. See Fogleman Table 1 (testing multiple herbicides including clomazone, demonstrating that routine screening of different herbicides in the claimed method was standard practice). Therefore, the method of claim 1 as a whole would have been obvious over Fogleman and Camargo.
Regarding claim 2, the claim recites that the herbicide A is applied into the water or onto the water surface of the aquatic environment. Fogleman explicitly teaches application into flood water: p. 240, col. 2 ("Flood was established … and maintained at a 5 to 10 cm depth" with applications made over the flood). Camargo teaches the same: p. 95, col. 1 ("plots were flooded … applications were made directly to the flood water"). Thus, the limitation of claim 2 is fully taught in both Fogleman and Camargo. To the extent claim 2 depends from claim 1, it is obvious for the same reasons as claim 1, with the added limitation being explicitly disclosed in the prior art.
Regarding claim 3, the claim recites that the aquatic environment is a flooded rice field, flooded rice paddy, pond, tank, or lake. Fogleman and Camargo both explicitly teach a flooded rice field/paddy (Fogleman Abstract; p. 240, col. 1; Camargo Abstract; p. 94, col. 2). Ponds, tanks, and lakes are alternative aquatic environments that would have been obvious substitutes for one of ordinary skill, as the claimed method involves applying an herbicide to water where rice is growing—a pond, tank, or lake would function equivalently for controlling undesirable vegetation. The specification provides no unexpected results or criticality for using any particular aquatic environment. Therefore, claim 3 is obvious over Fogleman and Camargo.
Regarding claim 4, the claim recites that an herbicidally effective amount of a composition comprising the herbicide A is applied. Fogleman teaches applying an herbicidally effective amount of a composition comprising acetochlor (Fogleman Table 1, listing rates in g ai/ha; p. 241, discussing weed control efficacy). Camargo teaches applying an herbicidally effective amount of a composition comprising saflufenacil (Table 1; Table 4, showing weed control). The term "herbicidally effective amount" is inherent to any herbicidal method—one of ordinary skill would necessarily apply an amount effective to control weeds. Fogleman and Camargo both disclose specific rates that are herbicidally effective. Thus, claim 4 is obvious over Fogleman and Camargo because the limitation is fully taught in the prior art or is an inherent property of any herbicidal method.
Regarding claim 5, the claim recites a method wherein the herbicide A is selected from a subset including dimethenamid, dimethenamid-P, metolachlor, S-metolachlor, and pyroxasulfone. Fogleman teaches applying acetochlor, which like dimethenamid-P, metolachlor, S-metolachlor, and pyroxasulfone is a very long chain fatty acid (VLCFA) inhibitor (HRAC Group 15). Fogleman discloses that acetochlor is applied pre-emergence or early post-emergence of undesirable vegetation in a flooded rice paddy after rice germination (Fogleman Abstract; p. 240, col. 2 (rice at 1.5- to 2-leaf stage); p. 241, Table 1 (PRE and early-POST applications); p. 240, col. 2 (5-10 cm flood)). One of ordinary skill in the art would have recognized that other VLCFA inhibitors, including dimethenamid, dimethenamid-P, metolachlor, S-metolachlor, and pyroxasulfone, share the same mechanism of action and would be expected to perform similarly when applied using the same timing and method. The specification provides no unexpected results or data showing any critical difference between acetochlor and these other VLCFA inhibitors. Therefore, substituting any of these known VLCFA inhibitors for acetochlor in the method of Fogleman would have been obvious to try with a reasonable expectation of success.
Regarding claim 6, the claim recites a method wherein the herbicide A is selected from a subset including dimethenamid, dimethenamid-P, metolachlor, S-metolachlor, pyroxasulfone, saflufenacil, and others. To the extent claim 6 covers VLCFA inhibitors, the same rationale as for claim 5 applies. To the extent claim 6 covers saflufenacil, Camargo teaches applying saflufenacil alone or in combination with imazethapyr in a flooded rice paddy after rice germination (Abstract; p. 95, col. 1 (rice at two- to three-leaf stage); p. 95, col. 1 (applications made directly to flood water); Table 1 (saflufenacil rates of 25-100 g ai/ha)). Camargo also teaches that saflufenacil is a protoporphyrinogen-IX oxidase (PPO) inhibitor (HRAC Group 14). One of ordinary skill would have recognized that other PPO inhibitors, such as those recited in claim 6 (e.g., carfentrazone, flumioxazin, sulfentrazone), share the same mechanism of action and would be expected to perform similarly when applied using the same timing and method taught in Camargo. The specification provides no unexpected results for any particular PPO inhibitor. Thus, applying other PPO inhibitors in place of saflufenacil in the method of Camargo would have been obvious.
Regarding claim 7, the claim recites a method wherein the herbicide A is selected from clomazone, dimethenamid-P, metolachlor, S-metolachlor, pyroxasulfone, and saflufenacil. For clomazone (a DOXP synthase inhibitor, HRAC Group F4), Fogleman teaches that clomazone is a standard rice herbicide used as a comparator (Fogleman Table 1, listing clomazone as a treatment). Fogleman implicitly teaches that clomazone can be applied under the same flooded rice conditions and application timing as acetochlor. See Fogleman p. 240-241 (describing the experimental design where multiple herbicides including clomazone were tested). One of ordinary skill would have been motivated to apply clomazone in the claimed method based on its known use in rice and the teaching in Fogleman that it can be used in the same environment and timing. For dimethenamid-P, metolachlor, S-metolachlor, and pyroxasulfone, the rationale from claim 5 applies (VLCFA inhibitors analogous to acetochlor in Fogleman). For saflufenacil, the rationale from claim 6 applies (PPO inhibitor taught in Camargo). No unexpected synergy or criticality is shown for any specific selection among these known herbicides.
Regarding claim 26, the claim recites the method of claim 7 wherein the herbicide A is saflufenacil. Claim 26 narrows claim 7 to saflufenacil specifically. Camargo explicitly teaches the method of claim 7 using saflufenacil in flooded rice after rice germination (Abstract; p. 95, col. 1 (rice at two- to three-leaf stage); p. 95, col. 1 (applications to flood water); Table 1 (rates of 25-100 g ai/ha)). To the extent claim 26 depends from claim 7 (which is itself rejected as obvious over Fogleman and Camargo), claim 26 is obvious for the same reasons as claim 7, with the additional limitation that the herbicide A is saflufenacil—a limitation that is explicitly disclosed in Camargo. Even if claim 7 were not separately obvious, claim 26 is anticipated by Camargo as set forth in above, or at a minimum is obvious because Camargo teaches exactly what claim 26 recites. One of ordinary skill would have found it obvious to apply saflufenacil in the method of claim 7 because Camargo already teaches that saflufenacil is effective when applied at the claimed timing in flooded rice. No unexpected results are shown for saflufenacil beyond what Camargo already discloses.
B. Obviousness of Formulation Features
Claims 8, 9, 10, 11, 12, and 13 are rejected under 35 U.S.C. § 103 as unpatentable over Fogleman alone or in combination with Camargo and further in combination with general knowledge in the art of agricultural formulations.
Regarding claim 8, the claim recites that the herbicide A is present in the composition in the form of liquid droplets, microcapsules, or solid particles. Fogleman explicitly discloses using a microencapsulated (ME) formulation of acetochlor (p. 240, col. 1: “Acetochlor was applied as a microencapsulated (ME) formulation”), corresponding to the microcapsule form of claim 8. Fogleman also discloses that the microencapsulated formulation was diluted with water and applied as an aqueous spray (p. 240, col. 2, describing spray volume of 187 L/ha). To the extent claim 8 covers liquid droplets or solid particles, these are conventional formulation types well known in the art, and their use in herbicide application would have been obvious.
Regarding claim 9, the claim recites that the composition is a liquid or solid formulation, each being optionally diluted with water. Fogleman teaches a liquid microencapsulated formulation that is diluted with water (Fogleman p. 240, col. 2). Camargo teaches an aqueous spray dilution obtained from a herbicide formulation (p. 95, col. 1, describing application volume of 200 L/ha). Solid formulations such as granules (GR) are conventional in rice paddy application, and one of ordinary skill would have found it obvious to use a solid formulation as an alternative to a liquid formulation.
Regarding claim 10, the claim recites that the composition is an emulsifiable concentrate (EC), suspension concentrate (SC), capsule suspension (CS), or granules (GR). Fogleman teaches a microencapsulated formulation, which is a capsule suspension (CS) when suspended in water (Fogleman p. 240, col. 1). Camargo teaches an aqueous spray that would be derived from an SC or EC formulation. Granules (GR) are a standard formulation for rice paddy application. Selecting among these conventional formulation types would have been a matter of routine optimization for one of ordinary skill.
Regarding claim 11, the claim recites that the composition is a suspension concentrate (SC) or a capsule suspension (CS) comprising saflufenacil, or a dilute aqueous suspension obtained therefrom. Camargo teaches applying saflufenacil as an aqueous spray (p. 95, col. 1), which would be obtained by diluting an SC or CS formulation. One of ordinary skill would have known that saflufenacil can be formulated as an SC or CS, as these are standard formulation types for herbicides. Fogleman teaches that CS formulations are suitable for the claimed method (Fogleman p. 240, col. 1). Thus, the specific formulation types for saflufenacil would have been obvious.
Regarding claim 12, the claim recites that the composition is a capsule suspension (CS) comprising saflufenacil or a dilute aqueous suspension obtained therefrom. As noted above, Fogleman teaches that CS formulations are suitable for the claimed method (p. 240, col. 1). While Fogleman uses acetochlor, one of ordinary skill would have found it obvious to formulate saflufenacil as a CS given that CS formulations are conventional for many herbicides and Camargo teaches that saflufenacil is effective when applied as an aqueous spray. No unexpected result is shown for using a CS formulation specifically for saflufenacil.
Regarding claim 13, the claim recites that the D50 of the capsules in the capsule suspension (CS) or dilute aqueous suspension is in the range of from 1 to 100 μm. Fogleman teaches a microencapsulated formulation of acetochlor (p. 240, col. 1). One of ordinary skill would know that microcapsule D50 values in the 1–100 μm range are conventional for herbicide CS formulations. The specification provides no criticality for any particular D50 range within this known window, and selecting an appropriate particle size would have been a matter of routine formulation optimization. See MPEP § 2144.05.
C. Obviousness of Rice Cultivation Type, Application Timing, Rate, and Resistance Claims (Claims 14–21)
Regarding claim 14, the claim recites that the rice plant is selected from flooded dry-seeded, drill-seeded, wet-seeded, water-seeded, and transplanted rice. Fogleman explicitly discloses water-seeded rice in a flooded paddy (p. 240, col. 1: “water-seeded” and “clay soil… flooded”). Camargo discloses transplanted rice in a flooded paddy (p. 94, col. 2; p. 95, col. 1). Together Fogleman and Camargo teach at least two of the five recited cultivation types. The remaining types — flooded dry-seeded, drill-seeded, and wet-seeded — are well-known conventional rice cultivation methods that differ only in the manner of seed placement, not in the herbicide application method. A person of ordinary skill would have had a reasonable expectation of success in applying the claimed herbicidal method to any cultivation type involving a flooded aquatic environment, since the method is defined by the condition of the aquatic environment and the growth stage of the rice, not by how the seed was planted. No unexpected results or criticality are shown for any particular cultivation type. Claim 14 is therefore obvious over Fogleman and Camargo.
Regarding claim 15, the claim recites that the herbicide A or composition is applied shortly before or shortly after emergence of the undesirable vegetation. Fogleman explicitly teaches applying acetochlor both pre-emergence (“PRE”) and at early post-emergence (“early POST”) of weeds in flooded rice (p. 241, Table 1). Camargo teaches applying saflufenacil at the two- to three-leaf stage of rice, which corresponds to a period shortly before or at early emergence of aquatic weeds in flooded paddies (p. 95, col. 1; Table 4). The limitation of applying “shortly before or shortly after” weed emergence is therefore directly taught by Fogleman and Camargo. To the extent the timing window in claim 15 extends beyond what is explicitly shown in Fogleman or Camargo, optimizing application timing within the period of weed emergence to maximize herbicidal efficacy would have been a matter of routine agronomic practice. The specification shows no criticality or unexpected benefit for any particular point within the “shortly before or shortly after” window. Claim 15 is obvious over Fogleman and Camargo.
Regarding claim 16, the claim recites that the herbicide A or composition is applied from the 2-leaf to the 6-leaf growth stage of the rice seedlings (BBCH Code 12 to 16). Fogleman discloses applying acetochlor at the POST timing when rice was at the 1.5- to 2-leaf stage (p. 240, col. 2), which falls at the lower boundary of the BBCH 12–16 window. Camargo discloses applying saflufenacil when rice was at the two- to three-leaf stage (p. 95, col. 1), which falls squarely within BBCH 12–16. Collectively, Fogleman and Camargo teach applications within the lower and middle portions of the claimed growth stage window. Applying herbicide through the remainder of the BBCH 12–16 window (up to the 6-leaf stage) would have been obvious because a person of ordinary skill routinely applies herbicides across a range of crop growth stages to accommodate variable weed emergence timing, and no criticality is shown for any particular growth stage within the claimed range. See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) (prima facie obviousness where claimed range overlaps with or abuts prior art range). Claim 16 is obvious over Fogleman and Camargo.
Regarding claim 17, the claim recites that the herbicide A or composition is applied at a rate of 0.0001 to 10 kilograms of active ingredient per hectare (kg ai/ha). Fogleman discloses application rates of 420, 840, and 1680 g ai/ha (0.42 to 1.68 kg ai/ha) for acetochlor (Table 1), which fall within claim 17’s range. Camargo discloses application rates of 25, 50, 75, and 100 g ai/ha (0.025 to 0.1 kg ai/ha) for saflufenacil (Table 1), which also fall within claim 17’s range. Because Fogleman and Camargo disclose specific rates within the claimed range, and because claim 17’s range is extraordinarily broad (spanning five orders of magnitude), the claim encompasses the prior art rates and extends to rates achievable only through routine dose-response optimization. No criticality is demonstrated for the outer limits of this range. See In re Peterson, 315 F.3d at 1329–30; In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990) (where prior art discloses a range within or overlapping the claimed range, the burden shifts to applicant to show unexpected results). Claim 17 is obvious over Fogleman and Camargo.
Regarding claim 18, the claim recites that saflufenacil or a composition comprising saflufenacil is applied at a rate of 0.01 to 0.5 kg ai/ha. Camargo discloses applying saflufenacil at rates of 0.025, 0.05, 0.075, and 0.1 kg ai/ha (Table 1), all of which fall squarely within the claimed range of 0.01 to 0.5 kg ai/ha. Because Camargo discloses specific saflufenacil application rates within the claimed range, and the claimed range is merely a defined window around the rates already taught in Camargo, no inventive step is present. To the extent claim 18 encompasses rates not explicitly disclosed in Camargo (e.g., 0.01 kg ai/ha or 0.5 kg ai/ha at the boundaries), selecting application rates within a known range for a known herbicide is routine dose-response optimization that would not have required inventive effort. See In re Peterson, 315 F.3d at 1329; In re Woodruff, 919 F.2d at 1578. No unexpected results are shown for any specific rate within the claimed range. Claim 18 is obvious over Camargo.
Regarding claim 19, the claim recites that the herbicide A or composition is applied from 5 to 15 days after the rice seeds have been sown or after the rice plants have been transplanted. Fogleman discloses that applications were made 13 days after seeding (p. 240, col. 2: “rice was seeded on May 18” and applications on May 31), which falls within the claimed 5–15 day window. Camargo discloses that applications were made when rice was at the two- to three-leaf stage (p. 95, col. 1), which in flooded transplanted rice corresponds to approximately 7–14 days after transplanting — also within the claimed window. Because Fogleman and Camargo both teach application timings within the claimed range, and because the 5–15 day post-seeding/transplanting window is a natural agronomic interval tied to rice seedling establishment rather than any novel discovery, the claimed timing is not patentably distinct from the prior art. No criticality is shown for the 5- or 15-day boundaries. Claim 19 is obvious over Fogleman and Camargo.
Regarding claim 20, the claim recites that the undesirable vegetation comprises an herbicide resistant or tolerant weed species. Camargo explicitly teaches that saflufenacil is valuable for managing ALS-inhibitor-resistant weeds in rice, stating that “saflufenacil will be an important tool for managing ALS resistant weeds” (p. 97, col. 2). This directly teaches that the weed population being controlled includes herbicide-resistant biotypes. To the extent Fogleman does not explicitly address resistance, Fogleman and Camargo together render claim 20 obvious because a person of ordinary skill managing weed populations in rice paddies would routinely encounter herbicide-resistant or herbicide-tolerant biotypes, and the choice of herbicide and application method of Fogleman and Camargo would be applied to such populations as a matter of standard resistance management practice. The specification provides no data showing that the claimed method uniquely or unexpectedly controls resistant weed species beyond what is taught in Camargo. Claim 20 is obvious over Fogleman and Camargo, and is anticipated by Camargo as set forth in Section III.B above.
Regarding claim 21, the claim recites that the herbicide resistant or tolerant weed species is a biotype with resistance or tolerance to at least one herbicide selected from ACCase inhibitors (HRAC Group A), ALS inhibitors (HRAC Group B), PSII inhibitors (HRAC Groups C1, C2, C3), DOXP synthase inhibitors (HRAC Group F4), and VLCFA inhibitors (HRAC Group K3). Camargo explicitly teaches that the method controls ALS-inhibitor-resistant weeds (HRAC Group B) (p. 97, col. 2), directly meeting one of the recited resistance classes. For the remaining resistance groups (ACCase inhibitors Group A, PSII inhibitors Groups C1–C3, DOXP synthase inhibitors Group F4, VLCFA inhibitors Group K3), resistance to each of these herbicide classes is well-documented in rice paddy weed populations, particularly for Echinochloa, Cyperus, and Lolium species. See, e.g., MPEP § 2144.02 (common knowledge in the art). A person of ordinary skill managing rice paddy weeds would routinely consider applying herbicides with a different mode of action to biotypes resistant to any of these groups, and Camargo’s explicit teaching that the method controls ALS-resistant weeds would motivate application of the same method to populations with resistance to other MOA groups. No unexpected results are shown for any particular resistance class. Claim 21 is therefore obvious over Fogleman and Camargo.
D. Obviousness of Additional Weed Species
Claims 22 and 23 are rejected under 35 U.S.C. § 103 as unpatentable over Camargo alone or in combination with Fogleman.
Regarding claim 22, the claim recites that the undesirable vegetation is selected from a list of genera including Cyperus, Echinochloa, Ammannia, Bacopa, Heteranthera, and Schoenoplectiella. Camargo explicitly teaches controlling Cyperus difformis (small-flower umbrella sedge) (Table 4, showing control of Cyperus difformis), Echinochloa crus-galli (barnyardgrass) (Table 4, showing control of Echinochloa crus-galli), Ammannia coccinea (purple redstem) (p. 97, col. 1, discussing redstem control), and Heteranthera limosa (duck salad) (Table 4). Fogleman teaches controlling Echinochloa crus-galli and Cyperus difformis (Fogleman p. 242, Table 2; p. 243). While Camargo may not explicitly name every genus in claim 22 (e.g., Bacopa, Schoenoplectiella), these are well-known aquatic weeds that grow in rice paddies. One of ordinary skill would have recognized that the method of Camargo, which is effective against a broad spectrum of rice weeds including sedges (Cyperus), grasses (Echinochloa), and broadleaf weeds (Ammannia, Heteranthera), would reasonably be expected to control other morphologically and physiologically similar aquatic weeds such as Bacopa monnieri (Monnier water hyssop) and Schoenoplectiella mucronata (rice-field bulrush). Extending the claim to cover these additional genera would have been obvious.
Regarding claim 23, the claim recites an even more specific list of weed species, including Cyperus difformis, Echinochloa crus-galli, Ammannia auriculata, Ammannia coccinea, Bacopa monnieri, Heteranthera limosa, and Schoenoplectiella mucronata. Camargo explicitly teaches controlling Cyperus difformis (Table 4), Echinochloa crus-galli (Table 4), Ammannia coccinea (p. 97, col. 1), and Heteranthera limosa (Table 4). Fogleman teaches controlling Cyperus difformis and Echinochloa crus-galli (Table 2). For Ammannia auriculata (a species closely related to Ammannia coccinea), Bacopa monnieri (a common aquatic weed), and Schoenoplectiella mucronata (a common rice-field sedge), one of ordinary skill would have reasonably expected the method of Camargo to control these species because they are morphologically and physiologically similar to weeds already shown to be controlled. The specification provides no data showing that these particular species are unexpectedly difficult to control or that the claimed method uniquely controls them. Thus, reciting these additional weed species would have been obvious.
E. Obviousness of Additional Herbicides B
Claim 24 is rejected under 35 U.S.C. § 103 as unpatentable over Camargo alone or in combination with Fogleman and further in combination with general knowledge in the art of herbicide tank-mixing.
Claim 24 recites applying the herbicide A in combination with at least one further herbicide B selected from groups b1 to b15. Camargo explicitly teaches applying saflufenacil (herbicide A) in combination with imazethapyr (Table 1; Abstract). Imazethapyr is an acetolactate synthase (ALS) inhibitor falling within group b2 of claim 24 (ALS inhibitors, HRAC Group B). Camargo teaches that the tank-mix of saflufenacil and imazethapyr provided effective weed control in rice (p. 97, col. 1-2). One of ordinary skill would have been motivated to combine saflufenacil or acetochlor with other known rice herbicides from groups b1 to b15 based on desired weed spectra, resistance management, or label recommendations. The specification provides no unexpected synergy or criticality for any particular herbicide B combination beyond what is already taught in Camargo. To the extent claim 24 covers combinations not explicitly taught in Camargo, selecting any particular herbicide B from the long list of known rice herbicides would have been a matter of routine optimization. See MPEP § 2144.04 (substitution of one known herbicide for another to achieve predictable results is obvious).
F. Obviousness of Safeners C
Claim 25 is rejected under 35 U.S.C. § 103 as unpatentable over Fogleman alone or in combination with Camargo and further in combination with general knowledge in the art of herbicide safening.
Claim 25 recites applying the herbicide A in combination with at least one safener C selected from a list including benoxacor, cloquintocet, dichlormid, fenclorim, isoxadifen, mefenpyr, and others. Fogleman teaches applying acetochlor in rice, but does not explicitly teach a safener. However, one of ordinary skill in the art would have known that safeners such as benoxacor are commonly used with VLCFA-inhibiting herbicides (including acetochlor) in graminaceous crops to reduce crop injury. See, e.g., MPEP § 2144.02 (well-known principles in the art). The specification provides no data showing that any particular safener is unexpectedly effective or necessary in the claimed method. Fogleman itself demonstrates that acetochlor can be applied in rice without a safener (Table 2, showing rice tolerance), so adding a safener would be an obvious modification to further improve crop safety. For saflufenacil (Camargo), safeners are also conventional in rice. Selecting any safener C from the recited list would have been obvious to one of ordinary skill as a routine additive to improve crop tolerance. No unexpected results are shown for any specific safener.
Conclusion
No claims are allowed.
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/ANDRE MACH/
Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
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