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, 2, 6, 9, 12, 15, 17, 19, 20, 22, 24, 26, 27, 37 and 49-53 are pending.
Withdrawn rejections
Applicant's arguments filed 10/27/2025 are acknowledged and have been fully considered. Any rejection and/or objection not specifically addressed below is herein withdrawn.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 1, 2, 6, 9, 15, 17, 19, 20, 22, 24, 26 and 53 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 5-9, 12 and 13 of U.S. Patent No. 11,793,195 in view of Baur et al. (US 2017/0265477; published September 21, 2017). Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claims encompass the claimed invention. The patented claim 1 comprises an auxin herbicide component, preferably a salt of dicamba, wherein the dicamba salts include the monoethanolamine salt, sodium salt, potassium salt, isopropylamine salt, diglycolamine salt and dimethylamine salt. Patented claim 6 further ads a monocarboxylic acid and at least one further herbicide. Patented claim 7 further adds 5-30% monocarboxylic acid and 10-50% further herbicide. Patent 8 claims the molar ratio of monocarboxylic acid to auxin herbicide is 3:10 to 10:1. Patent claim 9 specifies the further herbicide can be an agriculturally acceptable salt of glufosinate. ‘195 also teach the ratio of auxin to non-auxin herbicide 50:1 to about 1:10 (column 14, lines 55-64). The amount of auxin herbicide is about 5-70% (column 15, lines 1-7). The ratio of auxin to monocarboxylic acid ranges from 1:10 to 10:1 (column 16, lines 22-34). Total herbicide is about 5-50% by weight the concentrate (column 17, lines 27-36). The surfactant selected from alkoxylated phosphate esters (column 9, lines 34-48). ‘195 does not teach glufosinate ammonium salts. It is for this reason that Baur is joined. Baur teach aqueous formulations comprising glufosinate and further active agrochemical ingredients that are low-foaming (abstract). Baur et al. teach water-soluble water-soluble salts of glufosinate is preferably glufosinate-ammonium [0036]. Therefore, one of ordinary skill would have been motivate to combine the teachings of ‘195 and Baur et al. to formulate a concentrate comprising glufosinate-ammonium because Baur et al. teach it is a water-soluble glufosinate which can be easily formulated with water.
Response to Arguments
Applicant's arguments filed 10/27/2025 have been fully considered but they are not persuasive.
Applicant claims the only features of claim 1 of the subject matter of ‘195 are ammonium glufosinate and one of ordinary skill would not have had any reason to look to the teachings of Baur to include glufosinate ammonium. The Examiner is not persuaded by this argument because ‘195 and Baur are related to the formulations of herbicide formulations before the time of filing an Baur et al. teaches that glufosinate-ammonium because was a water-soluble glufosinate which can be easily formulated with water claims.
Claims 1, 2, 6, 9, 15, 17, 19, 20, 22, 24, 26 and 53 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of U.S. Patent No. 11,825,840 in view of Baur et al. (US 2017/0265477; published September 21, 2017). Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claims encompass the claimed invention. The patented claim 3 comprises an auxin herbicide component, preferably a salt of dicamba, wherein the dicamba salts include the monoethanolamine salt, sodium salt, potassium salt, isopropylamine salt, diglycolamine salt and dimethylamine salt. Patented claim 6 further adds a monocarboxylic acid and a surfactant selected from a phosphate ester. Patented claim 7 further adds 5-30% monocarboxylic acid and the molar ratio of monocarboxylic acid to auxin herbicide is 3:10 to 10:1. Patent claim 9 specifies the further herbicide can be an agriculturally acceptable salt of glufosinate. ‘840 also teach the ratio of auxin to non-auxin herbicide 50:1 to about 1:10 (column 22, lines 18-27). The amount of auxin herbicide is about 5-70% (column 22, lines 28-37). The surfactant selected from alkoxylated phosphate esters (column 15, lines 50-52). ‘840 does not teach glufosinate ammonium salts. It is for this reason that Baur is joined. Baur teach aqueous formulations comprising glufosinate and further active agrochemical ingredients that are low-foaming (abstract). Baur et al. teach water-soluble water-soluble salts of glufosinate is preferably glufosinate-ammonium [0036]. Therefore, one of ordinary skill would have been motivate to combine the teachings of ‘840 and Baur et al. to formulate a concentrate comprising glufosinate-ammonium because Baur et al. teach it is a water-soluble glufosinate which can be easily formulated with water.
Response to Arguments
Applicant's arguments filed 10/27/2025 have been fully considered but they are not persuasive.
Applicant claims the only features of claim 1 of the subject matter of ‘840 are ammonium glufosinate and one of ordinary skill would not have had any reason to look to the teachings of Baur to include glufosinate ammonium. The Examiner is not persuaded by this argument because ‘840 and Baur are related to the formulations of herbicide formulations before the time of filing an Baur et al. teaches that glufosinate-ammonium because was a water-soluble glufosinate which can be easily formulated with water claims.
Claims 12, 27, 37 and 49-52 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
No claims allowed.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIELLE D JOHNSON whose telephone number is (571)270-3285. The examiner can normally be reached on Monday-Friday 9:00 am-5:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany Barham can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
DANIELLE D. JOHNSON
Examiner
Art Unit 1617