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
Claims 1-6 are pending in the instant application.
Claims 1-6 are examined herein.
Priority
The instant application is a CIP of U.S. Patent Application No. 17/935,065, filed on 23 September 2022, and claims benefit of foreign priority to BR1020220073015, filed on 14 April 2022. The claims to the benefit of priority are acknowledged. It is noted, however, that applicant has not provided an English translation of the certified copy of the Brazilian patent as required by 35 U.S.C. 119(b). Without the English translation, one cannot ascertain if the instant invention is present in the Brazilian patent. As such, the effective filing date of the claims is 23 September 2022 and art prior to the CIP date may be cited against the claims.
Information Disclosure Statement
The information disclosure statement (IDS), submitted on 26 August 2024, is acknowledged and considered. The submissions are in compliance with the provisions of 37 CFR 1.97.
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 1-6 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, and 4 of U.S. Patent No. 12108758. Although the claims at issue are not identical, they are not patentably distinct from each other as the patent encompasses the narrower scope of the instant application.
Regarding claim 1, the patent discloses a low viscosity agricultural adjuvant for spraying syrups comprising 10% to 30% by weight of emulsifying agents, 7% to 25% by weight of surfactants, 0.15% to 1.0% by weight of suspending agents, 2.0% to 20% by weight of a silicone defoamer, 5.0% to 20% by weight of clays, and 50% to 80% by weight of water (claim 1).
Regarding claim 2, the patent discloses the emulsifying and surfactant agents can include ethoxylated fatty alcohols, ethoxylated oil, and linear alkylbenzene sulfonic acid (claim 2).
Regarding claim 3, the patent discloses the clays are can include sodium bentonites, attapulgite, sepiolite, and zeolite (claim 4).
Regarding claim 4, the patent discloses the emulsifying and surfactant agents are selected from triethanolamine lauryl ether sulfate, ethoxylated alcohol, ethoxylated fatty alcohols, ethoxylated oil, and linear alkylbenzene sulfonic acid (claim 2).
Regarding claim 5, the patent discloses the emulsifying and surfactant agents are selected from ethoxylated fatty alcohols, ethoxylated oil, and linear alkylbenzene sulfonic acid (claim 2).
Regarding claim 6, the patent discloses the clays are selected from sodium bentonites, attapulgite, sepiolite, and zeolite (claim 4).
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.
Claim(s) 1 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lindner et al. (US20160192642A1).
Regarding claim 1, Lindner teaches spray drift reductant adjuvants for agrochemical formulations (¶ [0002]). Linder teaches emulsifying agents and surfactants (¶ [0085], [0100], and [0157]). The first and second emulsifying agents or surfactants are taught between 30 wt.% - 70 wt. % (¶ [0232]). Xanthan gum, clay (kaolin), and water are taught in paragraph [0157]. Polysiloxane antifoam agents are taught in paragraph [0153], at a concentration of 0.005 wt. % to 1.0 wt. %.
Lindner does not teach all components in the claimed concentrations.
In the absence of criticality, it would be routine optimization for one skilled in the art to adjust the weight percentages of the adjuvant components to meet the formulation needs of the product. See MPEP 2144.05.II.A. In the instant case, to achieve high contact with the lower third of the target plant, but avoid drift, while simultaneously preventing residue clogging the sprayer the skilled artisan would be motivated to adjust the concentrations supplied by Lindner.
Conclusion
Claims 1-6 are rejected.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jerica K Wilson whose telephone number is (703)756-4690. The examiner can normally be reached Monday-Friday 9:00-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clinton Brooks can be reached at (571)270-7682. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/J.K.W./Examiner, Art Unit 1621
/CLINTON A BROOKS/Supervisory Patent Examiner, Art Unit 1621
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