2.0DETAILED 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 .
Election/Restrictions
Applicant’s election of clethodim from group (g) with traverse in the reply filed on 07/09/26 is acknowledged. However, because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement in their traversal of the election of species requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claim Objections
Claim 14 is objected to because of the following informalities: “atleast” should be “at least”. Appropriate correction is required.
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 7-10 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claims 7-10 recite multiple instances of broad recitations, and the claim also recites preferably…, more preferably, etc. which are the narrower statements of the ranges/limitations. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
As there are numerous instances of this language throughout applicant’s claims the examiner requests applicant’s assistance in correcting all instances of this language within the claims as filed.
Claim Rejections - 35 USC § 102
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 and 3-6 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by CN106857649 (‘649).
Regarding claims 1 and 3-6, ‘649 teaches and claims synergistic mixtures of glufosinate, the elected clethodim, and oxyfluorfen in weight ratios of 0.1-90:0.1-30:0.1-50, respectively, and they specifically claim and expressly prefer weight ratios of glufosinate, the elected clethodim, and oxyfluorfen of 15:3:2 which specifically anticipate the instant claims 5-6, and ‘649 teaches methods of controlling growth of undesirable vegetation at a locus, specifically wherein the undesirable vegetation includes E. indica, by applying these combinations to the locus/weeds (See entire document; abstract; claims; Embodiments 1-8, entirety of sections discussing these embodiments; Paragraph beginning: Preferably, the glufosinate-ammonium, clethodim, the weight ratio of Oxyfluorfen are 10-20：1-5:1-3.It is further preferred that institute The weight ratio for stating glufosinate-ammonium, clethodim and Oxyfluorfen is 15：3：2.; paragraph beginning: “The synergy after mixture is evaluated with the co-toxicity coefficient method…”).
‘649 appears to teach all the limitations of the claims and thereby anticipates the claims.
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 2, 7-10, and 14-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over CN106857649 (‘649) as applied to claims 1 and 3-6 above and further in view of BASF (US20200359630), as evidenced by Collins dictionary (IN SUCCESSION definition and meaning | Collins English Dictionary).
Determination of the scope and content of the prior art
(MPEP 2141.01)
‘649 teaches the method of claims 1 and 3-6 as discussed above and incorporated herein.
‘649 teaches and claims synergistic mixtures of glufosinate, the elected clethodim, and oxyfluorfen in weight ratios of 0.1-90:0.1-30:0.1-50, respectively, and they specifically claim and expressly prefer weight ratios of glufosinate, the elected clethodim, and oxyfluorfen of 15:3:2 which specifically anticipate the instant claims 5-6, and ‘649 teaches methods of controlling growth of undesirable vegetation at a locus, specifically wherein the undesirable vegetation includes E. indica, by applying these combinations to the locus/weeds (See entire document; abstract; claims; Embodiments 1-8, entirety of sections discussing these embodiments; Paragraph beginning: Preferably, the glufosinate-ammonium, clethodim, the weight ratio of Oxyfluorfen are 10-20：1-5:1-3.It is further preferred that institute The weight ratio for stating glufosinate-ammonium, clethodim and Oxyfluorfen is 15：3：2.; paragraph beginning: “The synergy after mixture is evaluated with the co-toxicity coefficient method…”).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
‘649 does not teach wherein the glufosinate is L-glufosinate or the claimed application rates, or concentrations instantly claimed or forming the claimed tank mix or application in the claimed immediate succession. However, as discussed above ‘649 teaches using overlapping synergistic ratios of the claimed herbicides to control the same weeds which are instantly claimed. It would have been obvious to one of ordinary skill in the art to optimize the application rates within the disclosed synergistic ratios of ‘649 in order to determine the instantly claimed application rates and concentrations because ‘649 already recognizes the claimed actives in ratios which overlap those instantly claimed exhibit synergy and are effective for controlling the claimed weed(s) and it is known, “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). This deficiency in ‘649 is also addressed by BASF as evidenced by Collins dictionary.
Regarding claims 1-4, BASF teaches herbicidal combinations comprising the claimed glufosinate, specifically L-glufosinate and which can contain as a most preferred second herbicide the instantly elected clethodim and wherein they teach that all of their claimed herbicidal combinations are synergistic for controlling weeds and wherein the weeds which are controlled include the claimed weed genera: Brachiaria, Eleusine, etc. (see entire document; [0108-0111]; abstract; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; claims; [0107-0124]).
Regarding claims 5-10, BASF teaches wherein their ratios of glufosinate/L-glufosinate and secondary herbicides of which clethodim is a preferred/most-preferred secondary herbicide are from 1000:1 to 1:500, particularly 500:1 to 1:250, more preferable from 100:1 to 1:50 and most preferably 100:1 to 1:10 which overlap the claimed ratio ranges (See entire document; abstract; claims; [0017]; [0123]; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; [0116-0123]; [0107-0124]), and they teach using application rates of glufosinate of typically from 50 gae/ha to 3000 gae/ha, preferably 100 g/ha to 2000 g/ha, etc. and wherein the second active is used at rates of 1 g/ha to 2000 g/ha, preferably 5 g/ha to 1500 g/ha, etc. and wherein the amounts/concentrations of the combined active agents in the formulations used is from about 1-80 wt% dependent upon formulation type and as such reads on/encompasses the claimed concentrations especially since BASF teaches using overlapping ratio ranges to those instantly claimed and wherein their combinations are synergistic for controlling weeds (see entire document; abstract; [0077-0107]; [0382-0384]; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; claims; [0107-0124]). BASF teaches forming their compositions to the desired concentrations of active agents to achieve their synergy see entire document; abstract; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; claims; [0116-0123]; [0107-0124]).
Regarding claims 14-15, BASF teaches steps of forming a tank mix/premix and applying the tank mix/pre-mix at the desired locus, and wherein the active combinations can be applied in succession which means they are applied in a manner such that one thing is followed uninterruptedly by another (as defined by Collins dictionary) and as such reads on the claimed immediate succession ([0107-0124]; claims; see entire document).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have formed the claimed compositions for application in the claimed methods having the claimed concentrations and application rates because as discussed above because ‘649 already recognizes the claimed actives in ratios which overlap those instantly claimed exhibit synergy and are effective for controlling the claimed weed(s) and it is known, “[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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious to do this because BASF teaches that the claimed combinations are preferred and teaches using the glufosinate and the clethodim in overlapping ratios to those instantly claimed and overlapping application rates to those instantly claimed, and teaches using overlapping concentrations of the two actives together in the compositions and teaches wherein their herbicidal combinations are synergistic for controlling weeds including the claimed weeds. Thus, it would have been obvious to one of ordinary skill in the art at the time of the instant filing to have formed the claimed combinations when looking to ‘649 and BASF by optimizing the amounts/concentrations, ratios, and application rates of glufosinate/L-glufosinate and clethodim to the claimed ratios, concentrations and application rates because as discussed above ‘649 and BASF together teach overlapping ratios, concentrations and application rates to those instantly claimed are useful for forming their synergistic herbicidal mixtures to control the claimed weeds and it is known, “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.’” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious to use the claimed L-glufosinate as the glufosinate in ‘649 and form the claimed composition as a tank mix which is then applied to the locus to control the weeds and applying in immediate succession the glufosinate and the at least one herbicide as is instantly claimed for the applying steps, etc. in ‘649 because BASF teaches that it was known to apply glufosinate and the at least one herbicide, specifically clethodim in succession and to form these compositions as tank mixes for application to weeds/their locus and as such it would be obvious to use known tank mix means as a means for mixing and applying the glufosinate and clethodim composition of ‘649 and it would be obvious to apply the actives in immediate succession because these formulation types and modes of application were known to be useful when applying the claimed active agents as is taught by BASF and as such would also be useful modes for applying the same actives in the methods and compositions of ‘649. Additionally, it would be obvious to use L-glufosinate as the glufosinate in ‘649 because BASF teaches that L-glufosinate is the herbicidally active form of glufosinate and as such it is obvious to use the herbicidally active form of glufosinate, L-glufosinate, when forming effective herbicidal combinations in ‘649, one of ordinary skill in the art would want to do this in order to form the most effective glufosinate/L-glufosinate herbicidal combinations for use in controlling weeds (See BASF: [0005]; [0006]; [0007]; [0012-0015]; [0018]; all sections cited above).
Claim(s) 1-10, 14-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over BASF (US20200359630), as evidenced by Collins dictionary (IN SUCCESSION definition and meaning | Collins English Dictionary).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Regarding claims 1-4, BASF teaches herbicidal combinations comprising the claimed glufosinate, specifically L-glufosinate and which can contain as a most preferred second herbicide the instantly elected clethodim and wherein they teach that all of their claimed herbicidal combinations are synergistic for controlling weeds and wherein the weeds which are controlled include the claimed weed genera: Brachiaria, Eleusine, etc. (see entire document; [0108-0111]; abstract; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; claims; [0107-0124]).
Regarding claims 5-10, BASF teaches wherein their ratios of glufosinate/L-glufosinate and secondary herbicides of which clethodim is a preferred/most-preferred secondary herbicide are from 1000:1 to 1:500, particularly 500:1 to 1:250, more preferable from 100:1 to 1:50 and most preferably 100:1 to 1:10 which overlap the claimed ratio ranges (See entire document; abstract; claims; [0017]; [0123]; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; [0116-0123]; [0107-0124]), and they teach using application rates of glufosinate of typically from 50 gae/ha to 3000 gae/ha, preferably 100 g/ha to 2000 g/ha, etc. and wherein the second active is used at rates of 1 g/ha to 2000 g/ha, preferably 5 g/ha to 1500 g/ha, etc. and wherein the amounts/concentrations of the combined active agents in the formulations used is from about 1-80 wt% dependent upon formulation type and as such reads on/encompasses the claimed concentrations especially since BASF teaches using overlapping ratio ranges to those instantly claimed and wherein their combinations are synergistic for controlling weeds (see entire document; abstract; [0077-0107]; [0382-0384]; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; claims; [0107-0124]). BASF teaches forming their compositions to the desired concentrations of active agents to achieve their synergy see entire document; abstract; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; claims; [0116-0123]; [0107-0124]).
Regarding claims 14-15, BASF teaches steps of forming a tank mix/premix and applying the tank mix/pre-mix at the desired locus, and wherein the active combinations can be applied in succession which means they are applied in a manner such that one thing is followed uninterruptedly by another (as defined by Collins dictionary) and as such reads on the claimed immediate succession ([0107-0124]; claims; see entire document).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)/Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
BASF merely does not teach a specific example of the claimed method, or the specifically claimed concentrations claimed in claims 5-10. However, as discussed above BASF teaches that the claimed combinations are preferred and teaches using the glufosinate and the clethodim in overlapping ratios to those instantly claimed and overlapping application rates to those instantly claimed, and teaches using overlapping concentrations of the two actives together in the compositions and teaches wherein their herbicidal combinations are synergistic for controlling weeds including the claimed weeds. Thus, it would have been obvious to one of ordinary skill in the art at the time of the instant filing to have formed the claimed combinations when looking to BASF by optimizing the amounts/concentrations, ratios, and application rates of glufosinate/L-glufosinate and clethodim to the claimed ratios, concentrations and application rates because as discussed above BASF teaches overlapping ratios, concentrations and application rates to those instantly claimed are useful for forming their synergistic herbicidal mixtures to control the claimed weeds and it is known, “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.’” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
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.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-10, 14-15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4, 6-12, 14-15 of copending Application No. 18877040 (‘040) in view of BASF (US20200359630).
‘040 teaches and claims herbicidal compositions comprising the claimed L-glufosinate and the specifically elected second herbicide clethodim for use in methods for controlling the same weed species instantly claimed. ‘040 teaches using the herbicide combinations which comprise the same and/or overlapping amounts and weight ratios of the L-glufosinate and the clethodim that are instantly claimed for use in the instantly claimed methods which substantially anticipated and/or rendered obvious by the compositions and methods of copending ‘040. ‘040 further teaches wherein the two herbicides can be applied successively/sequentially as claimed. ‘040 does not claim forming a tank mix and applying a tank mix, etc. These deficiencies in ‘040 are addressed by BASF.
Regarding claims 1-4, BASF teaches herbicidal combinations comprising the claimed glufosinate, specifically L-glufosinate and which can contain as a most preferred second herbicide the instantly elected clethodim and wherein they teach that all of their claimed herbicidal combinations are synergistic for controlling weeds and wherein the weeds which are controlled include the claimed weed genera: Brachiaria, Eleusine, etc. (see entire document; [0108-0111]; abstract; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; claims; [0107-0124]).
Regarding claims 5-10, BASF teaches wherein their ratios of glufosinate/L-glufosinate and secondary herbicides of which clethodim is a preferred/most-preferred secondary herbicide are from 1000:1 to 1:500, particularly 500:1 to 1:250, more preferable from 100:1 to 1:50 and most preferably 100:1 to 1:10 which overlap the claimed ratio ranges (See entire document; abstract; claims; [0017]; [0123]; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; [0116-0123]; [0107-0124]), and they teach using application rates of glufosinate of typically from 50 gae/ha to 3000 gae/ha, preferably 100 g/ha to 2000 g/ha, etc. and wherein the second active is used at rates of 1 g/ha to 2000 g/ha, preferably 5 g/ha to 1500 g/ha, etc. and wherein the amounts/concentrations of the combined active agents in the formulations used is from about 1-80 wt% dependent upon formulation type and as such reads on/encompasses the claimed concentrations especially since BASF teaches using overlapping ratio ranges to those instantly claimed and wherein their combinations are synergistic for controlling weeds (see entire document; abstract; [0077-0107]; [0382-0384]; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; claims; [0107-0124]). BASF teaches forming their compositions to the desired concentrations of active agents to achieve their synergy see entire document; abstract; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; claims; [0116-0123]; [0107-0124]).
Regarding claims 14-15, BASF teaches steps of forming a tank mix/premix and applying the tank mix/pre-mix at the desired locus, and wherein the active combinations can be applied in succession which means they are applied in a manner such that one thing is followed uninterruptedly by another (as defined by Collins dictionary) and as such reads on the claimed immediate succession ([0107-0124]; claims; see entire document).
It would have been obvious to one of ordinary skill in the art to form the claimed methods when looking to the combination of ‘040 and BASF because together they teach each and every limitation in the art and because it was known to combine the claimed herbicides to treat the claimed species of weeds prior to instant filing. It would be obvious to formulate and apply the compositions of ‘040 as tank mix because it was already known to do so as per BASF and it was already known to use the claimed herbicides in the claimed ratios, concentrations and application rates which are instantly claimed. Thus, one of ordinary skill in the art would conclude that the instantly claimed invention is an obvious variant of the invention taught by the combined references as discussed above.
This is a provisional nonstatutory double patenting rejection.
Claims 1-10, 14-15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 5-11, 13-14 of copending Application No. 18874469 (‘469) in view of BASF (US20200359630).
‘469 teaches and claims herbicidal compositions comprising the claimed L-glufosinate and ACCase herbicides which are used the claimed methods for controlling the same weed species instantly claimed, e.g. Bracharia decumbens. ‘469 teaches using the herbicide combinations which comprise the same and/or overlapping amounts and weight ratios of the L-glufosinate and ACCase herbicides that are instantly claimed for use in the instantly claimed methods. ‘040 does not claim wherein the ACCase herbicide is the claimed clethodim or the forming a tank mix and applying a tank mix, nor does ‘469 specifically claim applying the glufosinate and the at least one second herbicide, specifically the elected clethodim in immediate succession. However, this deficiency in ‘469 is addressed by BASF.
Regarding claims 1-4, BASF teaches herbicidal combinations comprising the claimed glufosinate, specifically L-glufosinate and which can contain as a most preferred second herbicide the instantly elected clethodim and wherein they teach that all of their claimed herbicidal combinations are synergistic for controlling weeds and wherein the weeds which are controlled include the claimed weed genera: Brachiaria, Eleusine, etc. (see entire document; [0108-0111]; abstract; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; claims; [0107-0124]).
Regarding claims 5-10, BASF teaches wherein their ratios of glufosinate/L-glufosinate and secondary herbicides of which clethodim is a preferred/most-preferred secondary herbicide are from 1000:1 to 1:500, particularly 500:1 to 1:250, more preferable from 100:1 to 1:50 and most preferably 100:1 to 1:10 which overlap the claimed ratio ranges (See entire document; abstract; claims; [0017]; [0123]; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; [0116-0123]; [0107-0124]), and they teach using application rates of glufosinate of typically from 50 gae/ha to 3000 gae/ha, preferably 100 g/ha to 2000 g/ha, etc. and wherein the second active is used at rates of 1 g/ha to 2000 g/ha, preferably 5 g/ha to 1500 g/ha, etc. and wherein the amounts/concentrations of the combined active agents in the formulations used is from about 1-80 wt% dependent upon formulation type and as such reads on/encompasses the claimed concentrations especially since BASF teaches using overlapping ratio ranges to those instantly claimed and wherein their combinations are synergistic for controlling weeds (see entire document; abstract; [0077-0107]; [0382-0384]; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; claims; [0107-0124]). BASF teaches forming their compositions to the desired concentrations of active agents to achieve their synergy see entire document; abstract; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; claims; [0116-0123]; [0107-0124]).
Regarding claims 14-15, BASF teaches steps of forming a tank mix/premix and applying the tank mix/pre-mix at the desired locus, and wherein the active combinations can be applied in succession which means they are applied in a manner such that one thing is followed uninterruptedly by another (as defined by Collins dictionary) and as such reads on the claimed immediate succession ([0107-0124]; claims; see entire document).
It would have been obvious to one of ordinary skill in the art to form the claimed methods when looking to the combination of ‘469 and BASF because together they teach each and every limitation in the art and because it was known to combine the claimed herbicides to treat the claimed species of weeds prior to instant filing as taught by BASF. It would be obvious to select the claimed clethodim as the ACCase herbicide and to formulate and apply the compositions of ‘469 as tank mix because it was already known to do so as per BASF and it was already known to use the claimed herbicides in the claimed ratios, concentrations and application rates which are instantly claimed and discussed above. Thus, one of ordinary skill in the art would conclude that the instantly claimed invention is an obvious variant of the invention taught by the combined references as discussed above.
This is a provisional nonstatutory double patenting rejection.
Claims 1-10, 14-15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 5-11, 13-14 of copending Application No. 18875399 (‘399) in view of BASF (US20200359630).
‘399 teaches and claims herbicidal compositions comprising the claimed L-glufosinate and ACCase herbicides which are used the claimed methods for controlling the same weed species instantly claimed, e.g. Eleusine species, e.g. E. indica. ‘399 teaches using the herbicide combinations which comprise the same and/or overlapping amounts/concentrations and weight ratios of the L-glufosinate and ACCase herbicides that are instantly claimed for use in the instantly claimed methods and wherein the glufosinate and the ACCase herbicide can be applied successively/sequentially. ‘399 does not claim wherein the ACCase herbicide is the claimed clethodim or the forming a tank mix and applying a tank mix, nor does ‘399 specifically claim applying the glufosinate and the at least one second herbicide, specifically the elected clethodim in immediate succession. However, these deficiencies in ‘399 are addressed by BASF.
Regarding claims 1-4, BASF teaches herbicidal combinations comprising the claimed glufosinate, specifically L-glufosinate and which can contain as a most preferred second herbicide the instantly elected clethodim and wherein they teach that all of their claimed herbicidal combinations are synergistic for controlling weeds and wherein the weeds which are controlled include the claimed weed genera: Brachiaria, Eleusine, etc. (see entire document; [0108-0111]; abstract; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; claims; [0107-0124]).
Regarding claims 5-10, BASF teaches wherein their ratios of glufosinate/L-glufosinate and secondary herbicides of which clethodim is a preferred/most-preferred secondary herbicide are from 1000:1 to 1:500, particularly 500:1 to 1:250, more preferable from 100:1 to 1:50 and most preferably 100:1 to 1:10 which overlap the claimed ratio ranges (See entire document; abstract; claims; [0017]; [0123]; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; [0116-0123]; [0107-0124]), and they teach using application rates of glufosinate of typically from 50 gae/ha to 3000 gae/ha, preferably 100 g/ha to 2000 g/ha, etc. and wherein the second active is used at rates of 1 g/ha to 2000 g/ha, preferably 5 g/ha to 1500 g/ha, etc. and wherein the amounts/concentrations of the combined active agents in the formulations used is from about 1-80 wt% dependent upon formulation type and as such reads on/encompasses the claimed concentrations especially since BASF teaches using overlapping ratio ranges to those instantly claimed and wherein their combinations are synergistic for controlling weeds (see entire document; abstract; [0077-0107]; [0382-0384]; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; claims; [0107-0124]). BASF teaches forming their compositions to the desired concentrations of active agents to achieve their synergy see entire document; abstract; [0001]; [0008]; [0019-0023]; [0045-0057, particularly mixtures M-1, M-81, M-161]; [0123]; claims; [0116-0123]; [0107-0124]).
Regarding claims 14-15, BASF teaches steps of forming a tank mix/premix and applying the tank mix/pre-mix at the desired locus, and wherein the active combinations can be applied in succession which means they are applied in a manner such that one thing is followed uninterruptedly by another (as defined by Collins dictionary) and as such reads on the claimed immediate succession ([0107-0124]; claims; see entire document).
It would have been obvious to one of ordinary skill in the art to form the claimed methods when looking to the combination of ‘399 and BASF because together they teach each and every limitation in the art and because it was known to combine the claimed herbicides to treat the claimed species of weeds prior to instant filing as taught by BASF. It would be obvious to select the claimed clethodim as the ACCase herbicide and to formulate and apply the compositions of ‘399 as tank mix because it was already known to do so as per BASF and it was already known to use the claimed herbicides in the claimed ratios, concentrations and application rates which are instantly claimed and discussed above. Thus, one of ordinary skill in the art would conclude that the instantly claimed invention is an obvious variant of the invention taught by the combined references as discussed above.
This is a provisional nonstatutory double patenting rejection.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Erin E Hirt whose telephone number is (571)270-1077. The examiner can normally be reached 10:30-7:30 ET M-F.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue X Liu can be reached at 571-272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ERIN E HIRT/Primary Examiner, Art Unit 1616
Prosecution Insights