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 .
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 12/20/224, 2/7/2025, 6/20/2025 and 11/7/2025 have been considered by the examiner.
Claim Rejections - 35 USC § 102
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 1-5, 7-9, 10, 12, 14 and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gao et al. (US 2019/0208786).
Gao discloses a method of controlling weeds (see claim 49), such as Barchiaria genus weeds (see [0090]), comprising applying a combination of glufosinate (see claim 1; see instant claim 1) and an auxin herbicide, e.g. 2,4-D, dicamba, triclopyr, etc. (see claim 7; see instant claims 1, 4 and 14). The glufosinate is a racemic mixture that comprises the L- isomer (see [0015]; see instant claims 1 and 14) and may be in the form of a salt such as glufosinate ammonium (see claim 4; see instant claims 2 and 3). The glufosinate and the auxin are present in the composition at a ratio of 1:5 to 5:1 (see claim 17; see instant claim 5). The method uses combination of herbicides in a single step and so are applied ‘jointly’ (see instant claim 12). Table 8 provides various glufosinate and dicamba formulations:
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wherein the glufosinate is present at a concentration of 20wt% and the dicamba at 34.02wt% which equates to 200 g/L and 340.2g/L, respectively (math not shown) (see instant claims 7 and 8). More broadly, Gao discloses that the glufosinate is present in a range of 5-50wt% (50-500 g/L) and the auxin (e.g. dicamba) in a range of 5-50wt% (50-500 g/L) (see claims 6 and 15; see instant claims 7 and 8).
Table 16.3 demonstrates that application rates of 298 g/ha glufosinate and 280 g/ha of the auxin herbicide (dicamba) (see instant claims 9, 10) exhibits 92.5% control of weeds (see 10052710-9 of Table 16.3) which is within the range of 80-100% control of weeds as required by present claim 12.It’s noted that instant claims 4 and 10 define/provide application rates of protoporphyrinogen oxidase inhibitor herbicides but because claim 1 includes this agent in the alternative, it is considered absent in the current reading of the claimed invention. Gao contemplates the method being aqueous and comprising surfactants which are considered ‘excipients’ (see [0007] and Examples; see instant claim 15).
Claims 1-5, 7-12, 14 and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Massa et al. (US 2018/0007901), evidenced by Gao et al. (US 2019/0208786).
Massa discloses herbicidal compositions comprising mixtures of saflufenacil (a protoporphyrinogen oxidase inhibitor) and glufosinate ammonium (see title, abstract, [0146] and claim 1; see instant claims 1-3, 14, 15) wherein the herbicides are present in the composition in an amount of 1-98wt% (10-980 g/L; math not shown) (see [0250]; see instant claims 7 and 8). Glufosinate is a racemic mixture which contains the L-isomer (see [0015] of evidence) . Massa’s examples provide a glufosinate to saflufenacil ratio of 12:1 (see Tables 16 and 17; see instant claim 5) which was capable of inhibiting 90% of weed growth (see instant claim 12). The method applies the saflufenacil at a rate of 1-500 g/ha (see [0188]; see instant claim 10) and glufosinate at a rate of 200-1500 g/ha (see [0189]; see instant claim 9). Exemplified weeds controlled by the method of Massa’s method includes Brachiaria species (e.g. Brachiaria decumbens) (see Table 2; see instant claim 11). Composition include excipients such as liquid carriers, solid carriers, surfactants and so on (see [0236] and Example; see instant claim 15).
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.
Claims 1-12 and 14-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gao et al. (US 2019/0208786) in view of Massa et al. (US 2018/0007901).
Gao fails to teach the method as including a protoporphyrinogen oxidase inhibitor (e.g. saflufenacil) such the weight ratio of glusofinate, to two additional herbicides is in the range of 1:25:25 to about 25:1:1.
Massa describes herbicidal compositions comprising mixtures of saflufenacil (a protoporphyrinogen oxidase inhibitor) and glufosiante (see title, abstract and claim 1) wherein the herbicides are present in the composition in an amount of 1-98wt% (10-980 g/L) (see [0250]; see instant claims 8) . Examples provide a glufosinate to saflufenacil ratio of 12:1 (see Tables 16 and 17) which was capable of inhibiting 90% of weed growth. The method applies the herbicidal composition/saflufenacil at a rate of 1-500 g/ha (see [0188]). Exemplified weeds controlled by the method of Massa include Brachiaria species (e.g. Brachiaria decumbens) (see Table 2; see instant claim 11).
It would have been obvious to modify Gao so as to further include saflufenacil wherein the ratio used by Massa was conserved with Gao’s teaching so as to overlap with the range present claimed. See MPEP 2144.06(I) which states that it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose. See MPEP 2144.05(II)(A) regarding the obviousness of the claimed ratio of glusoinate to the other two herbicides (e.g. auxin herbicide and protoporphyrinogen oxidase inhibitor).
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Bethany Barham, can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYLE A PURDY/Primary Examiner, Art Unit 1611
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