DETAILED 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 Group I, claims 1-16, and the species of saflufenacil as the species of additional herbicide(s) in the reply filed on 7/30/2026 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)).
Claims 4-7, 10, and 17-19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species and/or group, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 7/30/2026.
While Applicant indicated that claims 4 and 10 read on the elected species of saflufenacil, these claims require combinations of saflufenacil (or the generically recited protoporphyrinogen oxidase inhibitor) in combination with a 2nd herbicide, however, Applicant elected a single species of herbicide and not a disclosed combination, as such claims 4 and 10 do not read on the elected species.
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 9, 11-12, 14 and 16 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.
Claim 9 recites the limitation "the additional herbicide.” There is insufficient antecedent basis for this limitation in the claim as claim 1 recites “at least one additional herbicide” and it’s unclear if claim 9 is referring back to one, more than one or all additional herbicides.
Claim 11 recites “g a.i./L”, however the claim fails to define what this amount is based on. Is it based on a single formulation containing the combination of component (a) and (b) in claim 1, is it based on a formulation containing just component (a)? For purposes of examination, any of these two interpretation will be deemed to read on the claim.
Claim 12 recites “wherein (a)…in the range of…; wherein (b)…in the range of…; wherein (c)…in the range of…; wherein (d)…in the range of…; and wherein (e)…in the range of…”. Claim 12 depends from claim 1 which recites “at least one additional herbicide… or combinations thereof.” The use of the multiple wherein clauses and “and” makes it unclear if claim 12 is simply trying to define the amounts of herbicide (a), (b), (c), (d) or (e) if selected as the at least one herbicide, or if the claim is requiring all 5 components to be present.
For purposes of examination, claim 12 will be examined as not requiring all of (a)-(e) to be present, but simply defining the amount of the at least one herbicide which is present.
Claim 14 recites “wherein (a)…is applied…; wherein (b)… is applied …; wherein (c)… is applied …; wherein (d)… is applied …; and wherein (e)… is applied …”. Claim 14 depends from claim 1 which recites “at least one additional herbicide… or combinations thereof.” The use of the multiple wherein clauses and “and” makes it unclear if claim 14 is simply trying to define the application rate of herbicide (a), (b), (c), (d) or (e) if selected as the at least one herbicide, or if the claim is requiring all 5 components to be present and applied at the claimed rates.
For purposes of examination, claim 14 will be examined as not requiring all of (a)-(e) to be present, but simply defining the application range of the at least one herbicide which is present.
Claim 16 recites “the combination”. There is insufficient antecedent basis for this limitation in the claim as claim 1 recites an herbicidal combination, along with allowing “combinations thereof” with respect to components (a) and (b), thus it’s unclear which combination the claim is referring back too. For purpose of examination, claim 16 will be examined as reciting “the herbicidal combination”.
Claim Rejections - 35 USC § 102
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(s) 1-3, 8-9 and 11-16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Takano. Takano is cited on the 11/20/2024 IDS.
Regarding claims 1 and 3: Takano discloses that a tank mixture of glufosinate with saflufenacil provided enhanced herbicidal activity compared with the product applied individually to Palmer amaranth (Amaranthis palmeri S. Watson). Takano teaches that both herbicides ultimately lead to plant death by a massive accumulation of reactive oxygen species (ROS) through different mechanisms. The herbicide combination provided high levels of efficacy when applied at low temperature and low humidity (Abs). The herbicide applications were performed with a tracker sprayer (pg. 325, col. 1). This anticipates the claimed “method of controlling weeds by applying an herbicidal combination” as claimed.
Regarding claim 2: Takano teaches that the glufosinate used was the commercial formulation (Liberty 280 g/L), teaches that glufosinate is sold commercially as a racemic mixture of D- and L-phosphinothricin but only the L-isomer has herbicidal activity and teaches that the plants were sprayed with glusosinate plus ammonium sulfate, reading on L- glufosinate ammonium (pg. 324 and 325).
Regarding claim 8(a): The examiner would like to note that while claim 8 narrows the species of additional herbicides (a) through (e), this depends from claim 1 which only requires at least one additional herbicide to be used. Takano teaches using saflufenacil.
Regarding claim 9: Takano teaches administration of formulations containing 25% glufosinate and 75% saflufenacil (1:3); 50% glufosinate and 50% saflufenacil (1:1); and 75% glufosinate and 25% saflufenacil (3:1) (Table 1), all which anticipate the claimed range of 1-25:25-1.
Regarding claim 11: Takano teaches using Liberty 280 g/L (glufosinate), which falls within and anticipates the claimed range of 100-400 g a.i. /L.
Regarding claim 12: Takano teaches using Sharpen 297 g/L. The originally filed specification teaches that “about” embraces +/- 10% or +/-5%, thus the claimed “about 300” embraces a lower limit of 270 or 285 g a.i. /L, both of which are anticipated by 297.
Regarding claim 13: Takano teaches the glufosinate to be applied at a rate of 100, 200 and 300 g ai /ha (Table 1), which all anticipate the claimed range of 50-350 g ai/ha.
Regarding claim 14: Takano teaches the saflufenacil to be applied at a rate of 14.4, 9.6 and 300 g ai /ha (Table 1), which all anticipate the claimed range of 50-350 g ai/ha.
Regarding claim 15: Takano teaches administration of the formulation to Amaranthus palmeri plants (i.e. weeds).
Regarding claim 16: It is noted that the phrase “the combination provides from about 50% to about 100% control of weeds” is an expected property of the composition. The prior art anticipates the performance of the claimed steps with the claimed composition, therefore the composition claimed and the composition of the prior art are expected to have the same properties, absent evidence to the contrary.
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.
Claim(s) 1-3, 8-9 and 11-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Winters (WO 2019/030098).
Regarding claim 1: Winters teaches herbicidal mixtures comprising L-glufosinate or its salt and at least one protoporphyrinogen-IX oxidase inhibitor and teaches method of controlling undesired vegetation (abs).
Winters teaches that the mixture can be used to control a large number of dicotyledonous weeds, including those of the Amaranthus species (pg. 16).
Winters teaches saflufenacil to be a preferred protoporphyrinogen-IX oxidase inhibitor for use in combination with the L-glufosinate (pg. 6). Example 1 teaches a post emergence treatment using a mixture of L-glufosinate and saflufenacil.
Winters does not anticipate a method of controlling Amaranthus weeds with the claimed mixture, however, it would have been prima facie obvious to use the claimed mixture in a method of controlling dicotyledonous weeds, including those of the Amaranthus species, as this is contemplated by the prior art as a suitable use.
Regarding claim 2: Winters teaches that salts of L-glufosinate can be used, such as L-glufosinate ammonium (Winters – claim 1-3).
Regarding claim 3: As discussed above, Winters make obvious using a mixture of L-glufosinate and saflufenacil (i.e. a protoporphyrinogen-IX oxidase inhibitor).
Regarding claim 8: The examiner would like to note that while claim 8 narrows the species of additional herbicides (a) through (e), this depends from claim 1 which only requires at least one additional herbicide to be used. Winters teaches using saflufenacil.
Regarding claim 9: Winters teachings using the L-glufosinate and saflufenacil in a weight ratio of 1000:1 to 1:500 (Winters – claim 8), preferably 50:1 to 1:5 (pg. 4), which overlaps with the claimed range and overlapping ranges are prima facie obvious absent evidence of criticality.
Regarding claim 11: Winters teaches that the mixture is usually applied at a rate of 10-2000 liters per hectare (pg. 14) and teaches an application rate of L-glufosinate in amounts of 50-3000 g ai/ha (pg. 31), this provides a concentration of active ranging from .025-300 g per liter, which overlap with the claimed ranges. Furthermore, Winters teaches that the application rate (i.e. g/ha) depends on the density of the undesired vegetation, on the development stage of plants and on the climactic conditions of the location where the mixture is used (pg. 14), thus it would have been prima facie obvious to optimize the application rates (i.e. amounts of active present per hectare) through routine experimentation.
Regarding claim 12: Winters teaches using saflufenacil as a 342 g/L formulation (pg. 32), this overlaps with the claimed about 300-1200 g/L.
Regarding claim 13: Winters teaches the application rate of the mixture to be 300-3000 g/ha of active ingredient (a.i.) (pg. 14) and exemplifies applying the L-glufosinate in amounts of 200 and 400 g ai/ha, which overlap with the claimed ranges.
Regarding claim 14: Winters teaches that the protoporphyrinogen-IX inhibitor (i.e. saflufenacil) is applied at an application range of 1-2000 g/ha of active ingredient (a.i.) (pg. 31), which overlaps with the claimed ranges.
Regarding claim 15: Winters makes obvious using the composition to treat Amaranthus palmeri plants (pg. 16).
Regarding claim 16: It is noted that the phrase “the combination provides from about 50% to about 100% control of weeds” is an expected property of the composition. The prior art makes obvious the performance of the claimed steps with the claimed composition, therefore the composition claimed and the composition of the prior art are expected to have the same properties, absent evidence to the contrary.
Conclusion
No claims are allowable.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer A Berrios whose telephone number is (571)270-7679. The examiner can normally be reached Monday-Thursday from 9am-4pm and Friday 9am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Kwon can be reached at (571) 272-0581. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JENNIFER A BERRIOS/Primary Examiner, Art Unit 1613
