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, and species as follow:
Claims 1, 14 and 15: A(d). Combination, namely, L-glufosinate; L-glufosinate salts; and L-glufosinate esters.
Claims 1, 14 and 15: B(c). Combination, namely, protoporphyrinogen oxidase
inhibitor herbicides; and auxin herbicides.
Claim 12: simultaneous application of the combination.
Claims 1-12 and 14 encompass the elected species.
in the reply filed on 09/22/2026 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)).
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
Specification
The title of the invention is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed.
Claim Objections
Claims 1, 5, , 6, 7, 14, and 15 are objected to because of the following informalities: The claims should be amended in order to clarify the restriction selection as follow:
“L-glufosinate, L-glufosinate salts, and L-glufosinate esters”
Appropriate correction is required.
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 1-4, 7, 9, 11-12, 14, and 15 are rejected under 35 U.S.C. 102(a) (1) as being anticipated by Yerkes et al. (US 2014/0031227 A1) (“Yerkes” herein) and used as evidence of Massa et al. (US 2018/0007901 A1) (“Massa” herein).
(Claims contain only selected species)
Claim 1.
Yerkes discloses a method for controlling weeds by applying a herbicidal combination comprising: [0009-0010, 0027]
(a) L-glufosinate, L-glufosinate salts, and L-glufosinate esters; [0020-0021,0023, 0049-0050]
and
(b) at least one additional herbicide selected from the group consisting of protoporphyrinogen oxidase inhibitor herbicides and auxin herbicides; [0012, 0058]
wherein the weeds comprise Glycine genus weeds. (i.e. soybean vegetation) [00010 ] Massa ¶ [0200] recites undesired vegetation in fields of the following crops: including e.g. soybeans (Glycine max.)
Claim 2.
Yerkes discloses the method as claimed in claim 1, wherein the salt comprises an inorganic salt of L-glufosinate. [0020-0021,0023, 0049-0050]
Claim 3.
Yerkes discloses the method as claimed in claim 2, wherein the inorganic salt of L- glufosinate is selected from the group consisting of L-glufosinate sodium, L-glufosinate potassium, L-glufosinate ammonium, and combinations thereof. [0020-0021,0023, 0049-0050]
Claim 4.
Yerkes discloses the method as claimed in claim 1, wherein
(a) the protoporphyrinogen oxidase inhibitor herbicide is saflufenacil; and
(b) the auxin herbicide is selected from the group consisting of 2,4-D, triclopyr, 2,4-D choline, and combinations thereof. [0058]
Claim 7.
Yerkes discloses the method as claimed in claim 1, wherein the amount of L-glufosinate, L-glufosinate salts, and L-glufosinate esters thereof is in a range from about 100 g a.i./L to about 400 g a.i./L. [0049-0050]
Claim 9.
Yerkes discloses the method as claimed in claim 1, wherein ) L-glufosinate, L-glufosinate salts, and L-glufosinate esters is applied at an application rate from about 50 g a.i./ha to about 350 g a.i./ha. [0049-0050]
Claim 11.
Yerkes discloses the method as claimed in claim 1, wherein the Glycine genus weed is selected from the group consisting of weedy Glycine max, Glycine soja, and combinations thereof. [00010]
Claim 12.
Yerkes discloses the method as claimed in claim 1, wherein the herbicidal combination is applied jointly, or separately, or sequentially, or simultaneously to a plant or locus thereof to control from about 90% to about 100% of the weeds. [0010, 0025-0027]
Claim 14.
Yerkes discloses a herbicidal combination for controlling Glycine genus weeds, the herbicidal combination comprising:
(a) ) L-glufosinate, L-glufosinate salts, and L-glufosinate esters; [0020-0021,0023, 0049-0050]
and
(b) at least one additional herbicide selected from the group consisting of protoporphyrinogen oxidase inhibitor herbicides, and auxin herbicides. [0012, 0058]
Claim 15.
Yerkes discloses a herbicidal composition for controlling Glycine genus weeds, the herbicidal composition comprising: : [0009-0010, 0027]
(a) ) L-glufosinate, L-glufosinate salts, and L-glufosinate esters; [0020-0021,0023, 0049-0050]
(b) at least one additional herbicide selected from the group consisting of protoporphyrinogen oxidase inhibitor herbicides, and auxin herbicides; ; [0012, 0058]
and
(c) at least one agrochemically acceptable excipient. [0063-0067]
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.
Claims 5, 6, 8 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Yerkes, as applied to claim 1 above, and further in view of Massa et al. (US 2018/0007901 A1) (“Massa” herein).
Claim 5 -6.
Yerkes discloses the method as claimed in claim 1. Yerkes however does not explicitly disclose, wherein a weight ratio of the ) L-glufosinate, L-glufosinate salts, and L-glufosinate esters to at least one additional herbicide is in a range from about 1:25 to about 25:1 or at least two additional herbicides is in a range from about 1:25:25 to about 25:1:1. (Same as claim 8)
Claim 8.
Yerkes discloses the method as claimed in claim 1. Yerkes however does not explicitly disclose, wherein
(a) the protoporphyrinogen oxidase inhibitor herbicide is in a range from about 200 g a.i./L to about 900 g a.i./L; and
(b) the auxin herbicide is in a range from about 100 g a.i./L to about 700 g a.i./L.
Massa teaches the above limitation. (See paragraphs 0012, 0024-0025, 0069, 0200 → Massa teaches this limitation in that the present invention relates to a herbicidal combination comprising: a) a herbicide A which is saflufenacil, b) a herbicide B which is glufosinate or one of its salts, and c) at least one herbicide C different from herbicides A and B which is selected from C.1) herbicides of the group of acetolactate synthase inhibitors which are selected from the group of triazolopyrimidine herbicides, sulfonylamino-carbonyl-triazolinone herbicides and pyrimidinyl(thio) benzoate herbicides, C.2) herbicides of the group of protoporphyrinogen oxidase inhibitors, C.3) herbicides of the group of synthetic auxins,. In the combinations of the invention the weight ratio of herbicide B (glufosinate or one of its salts) to herbicide A is preferably from 1000:1 to 1:10, more preferably from 400:1 to 1:10. In addition, the weight ratio of herbicide B to herbicides A+C in the combinations of the invention is preferably from 500:1 to 1:100. In the combinations of this embodiment 3 the relative weight ratio of saflufenacil (herbicide A) to herbicide C.3 is preferably in the range from 1:1000 to 1:1The rate of application of saflufenacil is usually from 1 g/ha to 500 g/ha. ) for the purpose of combating/controlling common harmful plants in fields, where useful plants shall be planted (i.e. in crops). including e.g. soybeans (Glycine max.). [0200]
Accordingly, it would have been obvious to a person of ordinary skill in the art
before the effective filling date of the claimed invention to modify Yerkes, with the above limitation, as taught by Massa, in order to for combat/control common harmful plants in fields, where useful plants shall be planted (i.e. in crops). including e.g. soybeans (Glycine max.). [0200]
Claim 10.
Yerkes discloses the method as claimed in claim 1. Yerkes however does not explicitly disclose, wherein
(a) the protoporphyrinogen oxidase inhibitor herbicide is applied at an application rate from about 1 g a.i./ha to about 200 g a.i./ha; and
(b) the auxin herbicide is applied at an application rate from about 1 g a.i./ha to about 500 g a.i./ha. (Same as claim 8)
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 1,2,3,5,6,7,9,14,and 15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1,2,3,4,9,10,11,13, and 19 of copending Application No. 18/867,767 (‘767 herein) in view of Massa.
Although the claims at issue are not identical, they are not patentably distinct from each other because the instant application contain the same composition as the copending application ‘767 with exception the type of Genus.
Massa teaches that ¶ [0170] the combinations of the present invention are also suitable for controlling a large number of dicotyledonous weeds, in particular Amaranthus species such as pigweed (Amaranthus retroflexus). ¶ [0200] The combinations according to the present invention are suitable for combating/controlling common harmful plants in fields, where useful plants shall be planted (i.e. in crops) including e.g. soybeans (Glycine max.). Therefore, it would have ben obvious to a person of ordinary skill in the art before the effective filling date of the claimed invention to use the composition as recited in the instant application to control the genus Amaranthus, as recited in the application ‘767.
All the claims dependent of claim 1 are also rejected.
This is a provisional nonstatutory double patenting rejection.
Claims 1,2,3,5,6,7,9,14,and 15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1,2,3,5, 8, 13, and 15 of copending Application No. 18/876,937 (‘937 herein) in view of Yerkes.
Although the claims at issue are not identical, they are not patentably distinct from each other because the instant application contain the same composition as the copending application ‘937 with exception the type of Genus.
Yerkes teaches that ¶ [0045] n some embodiments, the methods provided herein are utilized to control undesirable vegetation found in row crops, tree and vine crops, and perennial crops. Spermacoce alata Aubl. (broadleaf buttonweed, BOILF), Spermacose latifolia (broadleaved button weed, BOILF), Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filling date of the claimed invention to use the composition as recited in the instant application to control the genus Spermacore, as recited in the application ‘937.
All the claims dependent of claim 1 are also rejected.
This is a provisional nonstatutory double patenting rejection.
All the claims dependent of claim 1 are also rejected.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1,2,3,4,5,6,7,8,9,10,12,13, 14, and 15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1,2,3,4, 5, 6, 7, 8, 9, 10, 12, 14, and 15 of copending Application No. 18/877,427 (‘427 herein) in view of Yerkes.
Although the claims at issue are not identical, they are not patentably distinct from each other because the instant application contain the same composition as the copending application ‘427 with exception the type of Genus.
Yerkes teaches that ¶ [0045] In some embodiments, the methods provided herein are utilized to control undesirable vegetation found in row crops, tree and vine crops, and perennial crops. In certain embodiments, the undesirable vegetation is Brachiaria decumbens Stapf., Brachiaria brizantha (Hochst. ex A. Rich.) Stapf., Brachiaria platyphylla (Groseb.) Nash, Brachiaria plantaginea (Link) Hitchc.). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filling date of the claimed invention to use the composition as recited in the instant application to control the genus Brachiaria, as recited in the application ‘427.
All the claims dependent of claim 1 are also rejected.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Kraus et al. (US 2016/0184658 A1) HERBICIDAL COMPOSITION COMPRISING CINMETHYLIN AND SAFLUFENACIL, Forlivio et al. (US 2017/0318812 A1) Plant And Crop Growth Regulating/Biostimulant Formulations And Methods Of Use, Satchivi et al. (US 2017/0354146 A1) SAFENING 4-AMINO-3-CHLORO-6-(4-CHLORO-2-FLUORO-3-METHOXYPHENYL)-5-FLUOROPYRIDINE-2-CARBOXYLIC ACID COMPOSITIONS IN BRASSICA SPECIES AND METHODS OF USE THEREOF.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SILVANA C RUNYAN whose telephone number is (571)270-5415. The examiner can normally be reached M-F 7:30-4:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue 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.
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/SILVANA C RUNYAN/Primary Examiner, Art Unit 1616 09/06/2026
