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 .
Priority
The instant application is the national stage entry of PCT/GB2023/051568 filed 15 June 2023. Acknowledgement is made of the Applicant’s claim of foreign priority to application IN202211034574 filed 16 June 2022.
Status of the Claims
Claims 1-11 and 13-14 are pending.
Claims 1-11 and 13-14 are rejected.
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.
Claims 13-14 is rejected under 35 U.S.C. 102a1 as being anticipated by Winter et al. (WO 2019/030104).
Winter teaches a composition comprising L-glufosinate and pyroxasulfone (a VLCFA inhibitor herbicide) which anticipates the composition of instant claim 13 (pg 32, Example 1). The L-glufosinate is used in the form of an emulsifiable concentrate that comprise water and organic solvents (i.e. excipients) thus anticipating instant claim 14 (pg 9, lns 22-25; pg 31, lns 32-35).
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.
Claims 1-11 and 13-14 are rejected under 35 U.S.C. 103 as being unpatentable over Winter et al. (WO 2019/030104).
Winter teaches a composition comprising L-glufosinate and pyroxasulfone (a VLCFA inhibitor herbicide) which anticipates the composition of instant claim 13 (pg 32, Example 1). The L-glufosinate is used in the form of an emulsifiable concentrate that comprise water and organic solvents (i.e. excipients) thus anticipating instant claim 14 (pg 9, lns 22-25; pg 31, lns 32-35). Glufosinate can be used in various salt forms including inorganic salts such as ammonium and sodium (pg 5, lns 1-2). The weight ratio of glufosinate (compound I) and pyroxasulfone (compound II) can range from 1000:1 to 1:500 (pg 4, lns 32-35). The overall agrochemical mixture may comprise the active agent in amounts from 0.01-95% or, when diluted, from 0.01-60% by weight (pg 10, ln 41- pg 11, ln 9). The composition can further comprise a liquid or solid carrier (pg 11, lns 16-18). During application, spray mixtures can be applied in amounts of from 10-2000 l/ha (pg 13, lns 8-9) for controlling weeds such as Brachiaria decumbens (pg 13, ln 38 – pg 14, ln 28). The concentration taught by Winter ranges from 1-2000 g/ha of active substance (pg 30, ln 32).
Winter does not teach the concentration of herbicide in instant claim 7.
At a rate of 10 l/ha of active substance that also matches 2000 g/ha, implies a concentration of 200 g/l. It would have been prima facie obvious to prepare the composition of Winter which comprises L-glufosinate (sodium salt), pyroxasulfone, and water in a concentration of 200 g/l of active substance (either glufosinate or pyroxasulfone). The ratio of agents could be 1:1, as taught in the prior art. The composition can then be used in a method of applying to weeds (at a rate of 300 g/ha, for example) to control the growth thereof of Brachiaria decumbens. Regarding the weed to target, it is well settled that it is a matter of obviousness for one of ordinary skill in the art to select a particular component from among many disclosed by the prior art as long as it is taught that the selection will result in the disclosed effect, even when the possible selections number 1200 or in the thousands. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985). The resulting composition renders obvious instant claims 1-6, 8-11, and 13-14.
Regarding instant claim 7, the concentration of herbicide can be adjusted to achieve the desired strength of weed control. That being said and in lieu of objective evidence of unexpected results, the concentration can be viewed as a variable which achieves the recognized result of successfully controlling the growth of specific weeds. The optimum or workable range of concentration can be accordingly characterized as routine optimization and experimentation (see MPEP 2144.05 (II)B). “[Discovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art.” In re Boesch, 617 F.2d 272, 276 (CCPA 1980).
Claims 1-11 and 13-14 are accordingly rejected as obvious in view of the prior art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW S ROSENTHAL whose telephone number is (571)272-6276. The examiner can normally be reached M-F 8-5pm EST.
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, 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.
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.
/ANDREW S ROSENTHAL/ Primary Examiner, Art Unit 1613
Prosecution Insights