DETAILED ACTION
Receipt is acknowledged of applicant’s Amendment/Response to Restriction Requirement filed 7/2/2026.
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 the Claims
Claims 13, 15 and 18 have been amended. Claims 12 and 19 are cancelled. Claims 21 and 22 are newly added. Accordingly, claims 1-11, 13-18 and 20-22 remain pending in the application.
Election/Restrictions
Applicant’s election without traverse of Group I (claims 1-11, 13-18, 21 and 22) and further species election Exxal-10+7EO (species A) and SLES (species B) in the reply filed on 7/2/2026 is acknowledged. Claims 1-4, 9-11, 13-18, 21 and 22 read on the elected species/invention.
Claims 5-8 and 20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention/species, there being no allowable generic or linking claim.
Accordingly, claims 1-4, 9-11, 13-18, 21 and 22 are currently under examination.
Information Disclosure Statement
The IDS’s dated 6/18/2024, 8/5/2024 and 8/21/2025 have been considered. Signed copies are enclosed herewith.
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 13 and 15 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.
Claims 13 and 15 recite the limitation "the concentrate" in the 1st line of each claim. Said claims depend from claim 1. Claim 1 makes no mention of a concentrate and, as such, there is insufficient antecedent basis for this limitation in the claims.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 13-15 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claims 13-15 recite various percentages of ingredients (3) and (4) (i.e., about 10-40%, about 13-35 %) which are outside the ranges set forth in parent claim 1 (i.e., about 0.05 to about 1 weight percent). Thus, the ranges set out in claims 13-15 do not further limit the ranges set out in parent claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claims 1-4, 9-11, 13-15 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Suzuki et al. (US 2009/0149328 A1, Jun. 11, 2009, hereafter as “Suzuki”).
The claimed invention is drawn to a method of forming a ready-to-use agricultural composition comprising glufosinate, said method comprising the step of: combining: (1) water, (2) at least one linear or branched C6-13 alcohol or alkoxylate thereof (elected species Exxal-10+7EO), (3) a salt of glufosinate, and (4) at least one linear or branched C8-13 alkyl ether sulfate (elected species SLES), to form the ready-to-use agricultural composition, wherein the concentration of each of (2), (3), and (4) is independently from about 0.05 to about 1 weight percent actives, based on a total weight of the ready-to-use agricultural composition.
Regarding instant claims 1, 9-11 and 21, Suzuki teaches a herbicide composition containing (A) an amino acid-based herbicide and (B) a compound having a branched structure represented by formula (1): R1CH2O--(R2O)nH, wherein R1 represents a C3 to C29 branched alkyl or branched alkenyl group, R2 represents a C2 to C4 alkylene group, and n is a mean number in the range of 1 to 30 (abstract). Suzuki teaches component A includes the particular active ingredients, glyphosate [N-(phosphonomethyl)glycine or its salt], Bialaphos [sodium salt of L-2-amino-4-[(hydroxy) (methyl) phosphinoyl) butyryl-L-alanyl-L-alanine] and gluphosinate [ammonium-DL-homoalanin-4-yl (methyl) phoshinate], and these may be agriculturally acceptable salts ([0009]). Suzuki teaches component A is included in an amount of preferably 0.1 to 80% by weight, more preferably 1 to 60% by weight ([0015]). Suzuki exemplifies POE(7) isodecyl ether (Exxal-10+7EO) as a particular component B (Table 1). Suzuki teaches that component (B) is included in an amount of preferably 0.01 to 50% by weight, more preferably 0.1 to 20% by weight ([0015]). Suzuki teaches the herbicide composition further comprises component C which can be an anionic surfactant including alkyl sulfates and polyoxyalkylene alkyl ether sulfates and exemplifies sodium POE(3) lauryl ether sulfate (SLES) ([0017], [0022], [0025], [0028]; Table 1). Suzuki teaches that component (C) can be included in an amount of 0.01 to 80% by weight, particularly 0.1 to 50% by weight ([0037]). Suzuki teaches that the raw chemical itself can be applied as is or it can be mixed with carrier (e.g., water) and other additives for use in preparation forms (i.e., ready to use) ([0039], [0040]; Table 1). Suzuki further teaches combining/mixing the components together ([0016], [0039] and [0047]).
Suzuki is silent to the particular combination of ingredients and amounts thereof (instant claims 1, 3, 4 and 13-15).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine water, isodecanol with 7 moles of ethylene oxide, a salt of glufosinate, and sodium lauryl ether sulfate with a reasonable expectation of success because Suzuki teaches each component as suitable for the composition.
Further, MPEP 2144.05(I) states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. Because the claimed ranges of about 0.05 to about 1 weight percent, about 0.1 to about 0.7 weight percent and about 0.2 to about 0.4 weight percent overlap with the ranges (e.g., 0.01 to 80%, 0.1 to 80%, 0.01 to 50%) disclosed by the prior art, a prima facie case of obviousness exists. MPEP 2144.05(II) also states, “Generally, 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’”. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the amount of each component with a reasonable expectation of success because Suzuki teaches general ranges of each component and it is the normal desire of scientists or artisans to improve upon what is already generally known to determine where in a disclosed set of percentage ranges is the optimum combination of percentages (MPEP 2144.05(II)).
Regarding instant claim 2, said claim recites, “wherein the ready-to-use agricultural composition exhibits an efficacy that is statistically the same as the efficacy of a comparative composition that is free of (2)”.. MPEP 2112.01 states,
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product. In re Best, 562 F.2d at 1255, 195 USPQ at 433. See also Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985)
Suzuki, as discussed above, suggests the composition of claim 1. Thus, a skilled artisan would have reasonably expected the same or similar composition to that of the claimed composition would yield the same properties including efficacy. Please note that the Patent and Trademark Office is not equipped to conduct experimentation in order to determine whether Applicants’ composition differs and, if so, to what extent, from that of the discussed reference. Therefore, with the showing of the reference, the burden of establishing non-obviousness by objective evidence is shifted to the Applicants.
Thus, the teachings of Suzuki render the instant claims prima facie obvious.
Claims 16-18 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Suzuki et al. (US 2009/0149328 A1, Jun. 11, 2009, hereafter as “Suzuki”), as applied to claim 1 above, in view of Pentland et al. (WO 2021/097530 A1, May 27, 2021, hereafter as “Petland”).
The claimed invention is described above.
Suzuki teaches the elements discussed above.
Suzuki is silent to the organic solvent, 1-methoxy-2-propanol and an alkyl polyglucoside (instant claims 16-18 and 22).
Pentland teaches an herbicidal glufosinate ammonium composition comprising glufosinate-ammonium; at least one alkylether sulfate surfactant; at least one alkylglycoside; and propylene glycol monomethyl ether (abstract). Pentland teaches that propylene glycol monomethyl ether (1-methoxy-2-propanol) plays an important role in preserving efficacy and stability with the increase in glufosinate-ammonium loading ([0026]). Pentland also teaches that relatively high amounts of alkyl glycoside with high loaded glufosinate-ammonium in the composition of the invention allows the water content to be minimized providing stability and no loss in efficacy with what was considered a sub-optimal content of alkyl ether sulfate surfactant synergist ([0024]). Pentland also teaches that “alkyl glycoside” and “glucoside” are synonyms ([0055]).
Both Suzuki and Pentland are drawn to herbicidal glufosinate ammonium compositions, thus, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include 1-methoxy-2-propanol and alkyl glycoside in the composition of Suzuki, as suggested by Pentland with a reasonable expectation of success. A skilled artisan would have been motivated to do so because Pentland teaches that 1-methoxy-2-propanol and alkyl glycoside both play a role in preserving efficacy and stability in glufosinate-ammonium compositions.
Thus, the combined teachings of Suzuki and Pentland render the instant claims prima facie obvious.
Conclusion
All claims have been rejected; no claims are allowed.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CASEY HAGOPIAN whose telephone number is (571)272-6097. The examiner can normally be reached on M-F 9:00 am - 5:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue Liu can be reached on 571-272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CASEY S HAGOPIAN/Examiner, Art Unit 1617
