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 .
DETAILED ACTION
Claim Status
The amended claim set of 27 Jun 2024 has been entered and reviewed. Claims 8-10, 13, 14, and 17 have been amended.
Claims 1-17 are pending.
Election/Restrictions
Applicant’s election of fluroxypyr as the second herbicide and Rubus fructicosu as the dicot weed in the reply filed on 17 Jul 2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
The requirement is still deemed proper and is therefore made FINAL.
Claims 4-12 are withdrawn from further consideration by the examiner, pursuant to 37 CFR 1.142(b), as being drawn to a non-elected species.
Claims 1-3 and 13-17 are under consideration to the extent of the elected species, i.e., fluroxypyr as the second herbicide and Rubus fructicosu as the dicot weed.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d).
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 27 Jun 2024 is in compliance with the provisions of 37 CFR 1.97, except where noted. Accordingly, the information disclosure statement is being considered by the examiner.
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.
Claim 13 is 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 claim 13, the use of "preferably" renders the claim indefinite because it is unclear whether the limitation following “preferably” is part of the claimed invention. See MPEP § 2173.05(d).
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 1-3 and 13-17 are rejected under 35 U.S.C. 103 as being unpatentable over Mann (OA 16933, published25 Jan 2016) in view of Desnouck et al. (US 2020/0275652, published 03 Sep 2020) and Alabama Cooperative (Control of Blackberry and Dewberry in Pastures and Hayfields, 18 Oct 2019) as evidenced by Parrish (US 6,096,687).
Mann teaches an herbicidal composition comprising a herbicidally effective amount of fluroxypyr and glyphosate for controlling the growth of undesirable vegetation (abstract, page 1 lines 8-15). Mann teaches that the rate at which the composition is applied depends on the particular type of weed to be controlled, the degree of control required, and the timing and method of application and Mann teaches fluroxypyr is applied at rate from about 50 gae/ha to about 560 gae/ha (page 8 lines 1-7), rendering obvious the rate as in claim 3. Mann teaches that the fluroxypyr and glyphosate compositions may used in conjunction with one or more other herbicides to control a wider variety of undesirable vegetation (page 4 lines 8-11, page 9 lines 7-9). Mann teaches additional herbicides for use with the composition include pelargonic acid (page 10 lines 32). Mann teaches the use of liquid carriers including water (page 12 line 22) and Mann teaches the composition can be applied to weeds or their locus by the use of sprayers (page 14 lines 21-22), rendering obvious an aqueous spray composition applied to locus of weeds. Mann teaches application volumes varying from 100 to 450 L/ha (page 15 lines 16-19), rendering obvious the spray volume of claims 1 and 14-16. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976).
Thus, Mann renders obvious aqueous spray compositions comprising pelargonic acid, glyphosate, and about 50 gae/ha to about 560 gae/ha fluroxypyr applied to the locus of weeds with spray volumes from 100-450 L/ha, but Mann does not teach the rate of pelargonic acid or the elected species of dicot weed, Rubus fructicosus. These deficiencies are made up for in the teachings of Desnouck and Alabama Cooperative.
Desnouck teaches herbicidal compositions comprising pelargonic acid ([0005]) that may be sprayed ([0048], [0063], [0067]) and teaches that the pelargonic acid is delivered at rates varying from 4000 to 8000 g of AS/ha (i.e. 4-8 kg of active substance per hectare) ([0028]). Desnouck teaches the herbicide composition is for dicotyledonous weeds such as the genus Rubus ([0032-0033]).
Alabama Control teaches that Balckberry shrubs are a species of Rubus and present problems in pastures and hayfields (page 1 left column) and that blackberry is effectively controlled by fluroxypyr (page 2 left column). As evidenced by Parrish, blackberry is known as Rubus fructicosus (page 8 lines 22-24).
Therefore, 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 have a method of controlling weeds, such as blackberry (i.e. rubus fructicosus), by applying an aqueous spray composition of fluroxypyr from 50 gae/ha to about 560 gae/ha and 4000 to 8000 g of AS/ha pelargonic acid with a spray volume from 100 to 450 L/ha to the locus of the weed. Applying compositions to weeds with fluroxypyr from 50 gae/ha to about 560 gae/ha and pelargonic acid is obvious from Mann. Herbicidal compositions comprising 4000 to 8000 g of AS/ha (i.e. 4-8 kg/ha) pelargonic acid are known from Desnouck and it would be obvious to use this amount in the compositions for the method of Mann as it is known to be a suitable amount in herbicidal compositions for treating weeds. It is obvious from Desnouck to use pelargonic acid in treating rubus weeks and it is known from Alabama Control that fluroxypyr is able to effectively control blackberry (i.e. rubus fructicosus), thus rendering it obvious to use the composition of fluroxypyr and pelargonic in a method of controlling blackberry (i.e. rubus fructicosus) as fluroxypyr is known for effectively controlling blackberry and its use for these weeds merely represents the use of known herbicidal components in a manner they’re known to be suitable for.
Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references.
Conclusion
No claim is allowed.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EDWIN C MITCHELL whose telephone number is (571)272-7007. The examiner can normally be reached Mon-Fri 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 on (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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/EDWIN COLEMAN MITCHELL/Examiner, Art Unit 1619
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