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 .
Claim Status
Claims 1-12, 14, and 15, are pending and under examination.
Claim Interpretation
The examiner best understands the range for the percent of weeds that are controlled by the instant method as the percentage of weeds that have any deviation from natural development, for example killing, retardation, leaf burn, albinism, dwarfing, etc., as defined by the instant specification (see pg. 6).
Claim Objections
Claim 2 is objected to because of the following informalities: tepraloxydim is repeated twice in component (ii). Appropriate correction is required.
Claim 12 is objected to because of the following informalities: “applied jointly, or separately, or sequentially, or simultaneously” should read “applied jointly, separately, sequentially, or simultaneously” to remove the unnecessary “or” recitations. Appropriate correction is required.
Claim Rejections - 35 USC § 112(b) or pre-AIA 2nd ¶
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 11 and 12 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 11 recites “wherein the weed of the Glycine genus is selected from the group consisting of weedy Glycine max, Glycine max,” and it unclear how weedy Glycine max and Glycine max are different, where Glycine max is also listed as the weed.
Claim 12 recites “applied… to a plant or locus thereof to control from about 45% to about 100% of the weeds,” and it is unclear if the limitation of “a plant or locus thereof” is referring to weeds of the Glycine genus, or a different plant. For purposes of examination, the claim is interpreted as applied to weeds of the Glycine genus.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-4, 6-8, 10-12, 14, and 15, are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Sada et al (US 20220061326 A1, hereinafter “Sada”), as evidenced by Sada (US 20230142963 A1, hereinafter “Sada ‘963”), and Gednalske et al (US 20230345933 A1, hereinafter “Gednalske”).
Sada discloses a method for controlling glufosinate resistant weeds, including the step of applying glufosinate or a salt thereof and at least one different herbicide to the glufosinate resistant weed or habitat of the glufosinate resistant weed, where excellent control effect is provided (abs). In embodiments, Liberty (280 g/L glufosinate ammonium salt) and clethodim (Select Max) were applied to volunteer glufosinate resistant soybean at an application rate of 451, 656, or 881 g/ha for glufosinate ammonium salt and 52 g/ha for clethodim (¶¶ 191, 193). The glufosinate includes the glufosinate-P isomer (¶ 31). As evidenced by the instant specification, glufosinate is racemic and glufosinate-P is L-glufosinate (see pg. 10 of the instant specification). As evidenced by Sada ‘963, Select Max contains 120 g/L clethodim (¶ 87). As evidenced by Gednalske, Liberty further comprises a surfactant (¶ 43). When, in the cultivation area of the crop A, another crop B unintentionally grows spontaneously, the crop that grows spontaneously is called a volunteer crop B, which is also a control target as one type of a weed, including volunteer glufosinate tolerant soybean (Glycine max) (¶¶ 86, 165). Glufosinate tolerant soybean are effectively controlled by the method of the present invention (¶ 165).
Regarding claim 1, where Sada discloses a method of controlling Glycine max by applying a herbicidal combination comprising glufosinate ammonium and clethodim (cyclohexanedione, see instant claim 2), the limitations are met.
Regarding L-glufosinate, where glufosinate is a racemic mixture and Sada discloses glufosinate comprises the isomer glufosinate-P (i.e., L-glufosinate), the limitation of comprising L-glufosinate is met.
Regarding claim 2, the combination of Sada comprises clethodim, thereby meeting the claimed limitation.
Regarding claims 3 and 4, the combination of Sada comprises glufosinate ammonium, which comprises L-glufosinate ammonium for the same reasons discussed above.
Regarding claim 6, where L-glufosinate ammonium is applied at 451, 656, or 881 g/ha and clethodim is applied at 52 g/ha, the resulting weight ratio is about 8.61:1, 12.61:1, or 16.94:1, respectively, all falling within the claimed range.
Regarding claim 7, the combination of Sada comprises Liberty, which is evidenced above as having a concentration of 280 g/L glufosinate ammonium salt. Purely arguendo, if the L isomer of glufosinate does not make up the full 280 g/L, where glufosinate is a racemic mixture (i.e., 50:50 L and D isomers), then 140 g/L of the concentration would be expected to comprise L-glufosinate ammonium, falling within the claimed range.
Regarding claim 8, the combination of Sada comprises Select Max, which is evidenced above as having a concentration of 120 g/L clethodim, falling within the claimed range.
Regarding claim 10, clethodim was applied at 52 g/ha, falling within the claimed range.
Regarding claim 11, Glycine max was controlled in the method of Sada, thereby meeting the claimed limitation.
Regarding claim 12, where the method of claim 1 is anticipated above, comprising the same components as those instantly claimed, and where the weight ratios and concentrations, and fall within the instantly claimed ranges, as taught by Sada, it would be reasonably expected that the formulation, once applied to control Glycine max, would comprise substantially the same control percentage of Glycine max. A rejection can be made when the prior art product seems to be identical except that the prior art is silent as to an inherent characteristic. Where applicant claims a composition in terms of a function, property or characteristic and the composition of the prior art is the same as that of the claim but the function is not explicitly disclosed by the reference, the examiner may make a rejection under both 35 U.S.C. 102 and 103. See MPEP 2112(II) and (III). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. See MPEP 2112.01(I).
Regarding claim 14, Sada discloses a combination comprising L-glufosinate ammonium and clethodim. The examiner notes that the claimed recitation of “controlling weeds of Glycine genus” is simply the intended use of the composition, and where the combination as claimed is met, the composition would appear to be capable of controlling weeds of the Glycine genus. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. See MPEP 2111.02(II). Nevertheless, where the combination as claimed is disclosed as capable of controlling Glycine max, the limitation is met.
Regarding claim 15, where claim 14 is anticipated above, and where Liberty is evidenced above as comprising a surfactant, it appears the limitation of the composition comprising at least one agrochemically acceptable excipient is met, where the instant specification lists surfactants as an agrochemically acceptable excipient (see pg. 30 of the instant specification).
Claim 14 is rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Hacker et al (US 20110287933 A1, hereinafter “Hacker”).
Hacker discloses herbicidal compositions capable of controlling harmful plants comprising the combination of glufosinate ammonium and clethodim (no. 10), L-glufosinate ammonium and clethodim (no. 118), etc. (¶ 18, 22, table 2). The combinations have outstanding herbicidal activity a broad spectrum of economically important monocotyledonous and dicotyledonous harmful plants (¶ 79).
Where Hacker discloses a composition capable of controlling weeds comprising embodiments as instantly claimed, the limitations appear to be met.
Regarding the claimed recitation of “for controlling weeds of Glycine genus,” the recitation is simply the intended use of the composition, and where the composition as instantly claimed is met and is capable of controlling weeds, the composition of Hacker appears to be capable of meeting the intended use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. See MPEP 2111.02(II).
Claim 14 is rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Winter et al (BR 112020002671 A2, hereinafter “Winter”).
Winter discloses herbicidal mixtures to control undesired vegetation including mixtures of L-glufosinate ammonium and quizalofop ethyl (M-11), L-glufosinate ammonium and quizalofop-P-tefuryl (M-15), L-glufosinate sodium and quizalofop ethyl (M-81), L-glufosinate sodium and quizalofop-P-tefuryl (M-85), L-glufosinate and quizalofop ethyl (M-151), L-glufosinate and quizalofop-P-tefuryl (M-155), etc. (tables 1 and 2). The combinations had synergistically enhanced activity, and had excellent herbicidal activity against a broad spectrum of monocotyledonous and dicotyledonous weeds (¶¶ 6, 99).
Where Winter discloses a composition capable of controlling weeds comprising embodiments as instantly claimed, the limitations appear to be met.
Regarding the claimed recitation of “for controlling weeds of Glycine genus,” the recitation is simply the intended use of the composition, and where the composition as instantly claimed is met and is capable of controlling weeds, the composition of Winter appears to be capable of meeting the intended use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. See MPEP 2111.02(II).
Claims 14 and 15 are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Chen (CN 103931650 A).
Chen discloses an herbicidal composition comprising glufosinate and clethodim, wherein a particular embodiment comprises glufosinate ammonium, clethodim, solvent, and emulsifier (¶¶ 33, 42). The combination of glufosinate and clethodim had a synergistic effect compared to single component formulations (¶ 63).
Where Chen discloses a composition capable of controlling weeds comprising an embodiment as instantly claimed, and comprises an emulsifier (i.e., an excipient), the limitations appear to be met.
Regarding the claimed recitation of “for controlling weeds of Glycine genus,” the recitation is simply the intended use of the composition, and where the composition as instantly claimed is met and is capable of controlling weeds, the composition of Chen appears to be capable of meeting the intended use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. See MPEP 2111.02(II).
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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 5, 9, 12, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Sada et al (US 20220061326 A1, hereinafter “Sada”), as evidenced by Sada (US 20230142963 A1, hereinafter “Sada ‘963”), and Gednalske et al (US 20230345933 A1, hereinafter “Gednalske”).
Sada discloses a method for controlling glufosinate resistant weeds, including the step of applying glufosinate or a salt thereof and at least one different herbicide to the glufosinate resistant weed or habitat of the glufosinate resistant weed, where excellent control effect is provided (abs). In embodiments, Liberty (280 g/L glufosinate ammonium salt) and clethodim (Select Max) were applied to volunteer glufosinate resistant soybean at an application rate of 451, 656, or 881 g/ha for glufosinate ammonium salt and 52 g/ha for clethodim (¶¶ 191, 193). The glufosinate includes the glufosinate-P isomer (¶ 31). As evidenced by the instant specification, glufosinate is racemic and glufosinate-P is L-glufosinate (see pg. 10 of the instant specification). As evidenced by Sada ‘963, Select Max contains 120 g/L clethodim (¶ 87). As evidenced by Gednalske, Liberty further comprises a surfactant (¶ 43). When, in the cultivation area of the crop A, another crop B unintentionally grows spontaneously, the crop that grows spontaneously is called a volunteer crop B, which is also a control target as one type of a weed, including volunteer glufosinate tolerant soybean (Glycine max) (¶¶ 86, 165). Glufosinate tolerant soybean are effectively controlled by the method of the present invention (¶ 165). The additional herbicide includes acetyl-CoA carboxylase inhibitors including clodinafop, clodinafop-propargyl, cyhalofop, cyhalofop-butyl, diclofop, diclofop-methyl, fenoxaprop, fenoxaprop-ethyl, fenoxaprop-P, fenoxaprop-P-ethyl, fluazifop, fluazifop-butyl, fluazifop-P, fluazifop-P-butyl, haloxyfop, haloxyfop-methyl, haloxyfop-P, haloxyfop-P-methyl, metamifop, propaquizafop, quizalofop, quizalofop-ethyl, quizalofop-P, quizalofop-P-ethyl, alloxydim, clethodim, sethoxydim, tepraloxydim, tralkoxydim, and pinoxaden (¶¶ 38-39, claim 2). The combination is usually mixed with a carrier and further formulated by addition of an auxiliary agent such as a surfactant if necessary (¶ 96). The application rate of the present compound is usually 100-2000 g per 10,000 m2 (100-2000 g/ha) (¶ 98).
Sada does not disclose a particular embodiment comprising the active ingredients of claim 5, nor an embodiment comprising the application rate of claim 9. Further, purely arguendo, if somehow the control percentage would not be expected to be the same, and inclusion of a surfactant in Liberty does not read on the composition comprising at least one agrochemically acceptable excipient, the following applies.
Regarding claim 5, where the combination of Sada comprises clethodim, an acetyl-CoA carboxylase inhibitor, it would have been obvious to substitute other acetyl-CoA carboxylase inhibitors for clethodim, including quizalofop-ethyl, as taught by Sada, as a matter of substituting equivalents known for the same purpose, where both were known acetyl-CoA carboxylase inhibitors that can be used in combination with glufosinate for controlling weeds. See MPEP 2144.06(II).
Regarding claim 9, where Sada discloses embodiments with L-glufosinate ammonium applied as low as 451 g/ha, and the reference teaches the combination can be applied at 100-2000 g/ha, it would have been obvious for the skilled artisan to adjust within that range depending on desired weed control activity. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Further, it would have been well within the relative skills of the skilled artisan to have routinely optimized the amount of L-glufosinate ammonium in order to achieve desired weed control, where the skilled artisan would reasonably recognize the amount of L-glufosinate ammonium as a results effective variable as its function is that of an agriculturally active ingredient for controlling weeds. 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. Where 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. See MPEP 2144.05(II)(A).
Regarding claim 12, where the method of claim 1 is anticipated above, comprising the same components as those instantly claimed, and where the weight ratios, concentrations, and application rates fall within or overlap the instant claimed ranges, as taught by Sada, it would be reasonably expected that the formulation, once applied to control Glycine max, would comprise substantially the same control percentage of Glycine max. A rejection can be made when the prior art product seems to be identical except that the prior art is silent as to an inherent characteristic. Where applicant claims a composition in terms of a function, property or characteristic and the composition of the prior art is the same as that of the claim but the function is not explicitly disclosed by the reference, the examiner may make a rejection under both 35 U.S.C. 102 and 103. See MPEP 2112(II) and (III). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. See MPEP 2112.01(I).
Purely arguendo, even if not, the skilled artisan would reasonably recognize the weight ratios, the concentrations, and application rates of the herbicidal combination as results effective variables that can be adjusted in order to achieve desired and optional control of weeds of the Glycine genus. 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. Where 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. See MPEP 2144.05(II)(A).
Regarding claim 15, purely arguendo, if somehow the inclusion of a surfactant in Liberty does not read on the composition comprising at least one agrochemically acceptable excipient, it would have been obvious to further include an auxiliary agent such as a surfactant to the combination of Sada, as motivated by Sada, thereby appearing to meet the limitation of an agrochemically acceptable excipient.
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.
Claim 1-12, 14, and 15, are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of copending Application No. 18/800,855 (reference application), hereinafter ‘855, in view of Sada (US 20230142963 A1, hereinafter “Sada ‘963”). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of ‘855 disclose a method for controlling growth of undesirable vegetation including Glycine max, comprising applying a combination of L-glufosinate and at least one selected from aryloxyphenoxy propionic class herbicides, etc., including quizalofop, fenthiaprop, etc. The weight ratio of glufosinate to the at least one herbicide is 1:100 to 100:1. The glufosinate is 100-400 g ai/L. The aryloxyphenoxy propionic class herbicide is 1-250 g ai/L. The glufosinate is applied at 50-350 g/ha. The aryloxyphenoxy propionic class herbicide is applied at 1-150 g/ha.
The claims of ‘855 do not disclose the particular active of claim 5, the salts of L-glufosinate, nor the including of an excipient.
It would have been to include known active ingredients suitable for controlling Glycine max, including quizalofop-ethyl, as taught by Sada, as a matter of substituting equivalents known for the same purpose, where both quizalofop, etc., were known acetyl-CoA carboxylase inhibitors that can be used in combination with glufosinate for controlling weeds. See MPEP 2144.06(II).
It would have been obvious to use a salt from of L-glufosinate, including L-glufosinate ammonium, a suitable active for controlling Glycine max, as taught by Sada.
It would have been obvious to further include an excipient, where excipients were known to be suitable for compositions comprising L-glufosinate and acetyl-CoA carboxylase inhibitors for controlling Glycine max, as taught by Sada, depending on desired formulation properties, stability, etc.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
The following are also rejected for the same reasons:
Copending application no. 18/875,399, while disclosing compositions and methods of controlling undesirable vegetation comprising a combination of L-glufosinate or salts thereof and an acetyl CoA carboxylase inhibitor, the claims do not disclose controlling weeds of the Glycine genus. It would have been obvious to control other known undesirable vegetation that were known to be controlled by the combination, including Glycine max, as taught by Sada.
Copending application no. 18/874,469, while disclosing methods of controlling undesirable vegetation comprising a combination of L-glufosinate or salts thereof and an acetyl CoA carboxylase inhibitor, the claims do not disclose controlling weeds of the Glycine genus. It would have been obvious to control other known undesirable vegetation that were known to be controlled by the combination, including Glycine max, as taught by Sada.
Copending application no. 18/867,767, while disclosing methods of controlling undesirable vegetation comprising a combination of L-glufosinate or salts thereof and an acetyl CoA carboxylase inhibitor, the claims do not disclose controlling weeds of the Glycine genus. It would have been obvious to control other known undesirable vegetation that were known to be controlled by the combination, including Glycine max, as taught by Sada.
Claims 1-12, 14, and 15, are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of copending Application No. 19/142,876 (reference application), hereinafter ‘876. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of ‘876 disclose an herbicidal combination comprising L-glufosinate, salts, esters, or combinations thereof, and at least one additional herbicide selected from quizalofop-ethyl, etc., with weight ratios, concentrations, and applications rates as instantly claimed, as well as a method for controlling weeds selected from Glycine max, etc. The combination controls from about 30 to about 100% of the weeds.
It would have been obvious to control Glycine max by applying a combination of L-glycine, salts, esters, and combinations thereof, with an additional herbicide selected from quizalofop-ethyl, etc., within the weight ratios, concentration ranges, and application rates disclosed by ‘876, thereby meeting the instantly claimed limitations.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSHUA A ATKINSON whose telephone number is (571)270-0877. The examiner can normally be reached M-F: 9:00 AM - 5:00 PM + Flex.
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/JOSHUA A ATKINSON/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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