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 .
Claims 1, 10, 14, 17, 19-21, 23, and 25-26 are pending in this application.
Election with traverse
Applicant's election with traverse of the species prosulfocarb in the reply filed on 6/3/2026 is acknowledged. The traversal is on the ground(s) that the Examiner has “improperly grouped the claimed subject matter into distinct species solely on the basis of the structure of the ‘second herbicide.’” According to Applicant, “the special technical feature lies in the interaction between napropamide … and the selected second herbicide, which yields enhanced and selective weed control.” However, Kotzian (WO 2006/063835) explicitly discloses the synergistic herbicidal combination and composition of napropamide and inhibitors of VLCFAs, including the elected prosulfocarb, which exceeds additive effect, broadens the range of action, reduces rates of application, and achieves a high level of weed control (page 1, lines 30-36; paragraph bridging pages 2-3; page 3, lines 10-11; claims 1-8). Thus, any shared or corresponding technical relationship among the species fails to make a contribution over the prior art, and the species are held as lacking unity of invention.
The requirement to elect a species is still deemed proper and is therefore made FINAL.
Claims 1, 10, 14, 17, 19-21, 23, and 25-26 will presently be examined to the extent that they read on the elected subject matter.
35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph
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 1, 10, 14, 17, and 19-20 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 1 and 10 are directed to a “herbicidal combination” (emphasis added) for controlling weeds, the combination comprising napropamide and a second herbicide. It is unclear what the full scope of "combination" encompasses. U.S. Patent statutes permit inventions directed to a process, machine, article of manufacture, or composition of matter. Here, it appears that a “combination” could be read to include a composition, process and/or article of manufacture (two separate containers, one for napropamide and another for the second herbicide). Applicant must choose one category of invention for each claim. The claim is rejected for being unclear as to which category of invention the claimed invention is directed.
Remaining claims are included in this ground of rejection because they do not cure the deficiency of the base claim.
35 USC 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1, 10, 14, 17, 19-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. As stated previously in this Office action, it is unclear which category of invention “combination” encompasses, if any.
Prior art-based grounds of rejection
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 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kotzian (WO 2006/063835).
Kotzian explicitly discloses herbicidal combination of prosulfocarb + napropamide (page 3, lines 10-11). Claim 1 is thereby anticipated.
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.
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, 10, 14, 17, 19-21, 23, and 25-26 are rejected under 35 U.S.C. 103 as being unpatentable over Kotzian (WO 2006/063835) in view of Kotzian (WO 2006/063834).
Kotzian (WO 2006/063835; hereinafter, Kotzian ‘835 discloses herbicidal combination, composition, and weed control method wherein prosulfocarb and napropamide are used together (page 3, lines 10-11; claims 1-8). See also page 1, line 3-17. The combination “exhibits a synergistic action” (page 1, lines 30-36), which exceeds additive effect, broadens the range of action, reduces rates of application, and achieves a high level of weed control (paragraph bridging pages 2-3). 25:1 to 1:25 mixture ratio is disclosed (page 3, lines 23-25). Application rate includes 1-5 kg per hectare (page 3, lines 27-34). Formulation with additives, carriers, solvents, and surfactants (page 5, line 8 to page 7, line 23), and concentration range of 0.1-99 wt%, including preferably 0.1-5% as dusts, 0.5-15 wt% as granules, 10-50 wt% as suspension concentrates,60-90 wt% as emulsifiable concentrates, are disclosed (page 9, line 10 to page 11, line 47). Additional herbicide can be added (page 7, lines 25-26).
Kotzian (WO 2006/063834; hereinafter, Kotzian ‘834) discloses herbicidal combination, composition, and weed control method wherein prosulfocarb and diflufenican (a Group F1, inhibitor of PDS, bleaching herbicide) are used together (page 3, lines 10-11; claims 1, 3-7). See also page 1, line 3-17. The combination “exhibits a synergistic action” (page 1, lines 31-36), which exceeds additive effect, broadens the range of action, reduces rates of application, and achieves a high level of weed control (paragraph bridging pages 2-3). 50:1 to 1:50 mixture ratio is disclosed (page 3, lines 25-27). Application rate includes 1-5 kg per hectare (page 3, lines 29-36). Formulation with adjuvants, carriers, solvents, and surfactants (page 5, line 8 to page 7, line 23), and concentration range of 0.1-99 wt%, including preferably 0.1-5% as dusts, 0.5-15 wt% as granules, 10-50 wt% as suspension concentrates,60-90 wt% as emulsifiable concentrates, are disclosed (page 9, line 10 to page 11, line 45). Additional herbicide can be added (page 7, lines 25-26).
Kotzian ‘835 does not explicitly disclose diflufenican as a third herbicide, the first two herbicides being prosulfocarb and napropamide However, Kotzian ‘835 discloses further addition of another herbicide, and diflufenican is known to exhibit synergistic activity with prosulfocarb from Kotzian ‘834. The ordinary skilled artisan would have been motivated to add diflufenican for the multiple advantages of additional synergy and broad spectrum of control. All other claim features would have been obvious from the ratio and application rates taught by the prior art.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, because every element of the invention and the claimed invention as a whole have been fairly disclosed or suggested by the teachings of the cited references.
For these reasons, all claims are rejected. No claim is allowed.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to JOHN PAK whose telephone number is (571)272-0620. The Examiner can normally be reached on Monday to Friday from 8:30 AM to 5 PM.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's SPE, Fereydoun Sajjadi, can be reached on (571)272-3311. The fax phone number for the organization where this application or proceeding is assigned is (571)273-8300.
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/JOHN PAK/Primary Examiner, Art Unit 1699
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