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 .
Examiner Suggestions
Claim 2 the examiner believes the claim should recite “further comprising” instead of “which also contains”.
Claims 14-16 the examiner requests applicants double check the punctuation in the claim, as the examiner believes that the semi-colons after isopropyl amine and/or diethylamine in line 3 of each of the claims should actually be a comma, and that the commas at the end of line 4 in each of the claims should be a semi-colon based on the fact that the amines go with the 2,4-D to form amine salts in the formulations. If the punctuation is correct as presented in the instant claims please just advise so in the next action.
Appropriate correction is required.
Claim Objections
Claim 9 is objected to because of the following informalities: a ratio by definition contains at least two numbers as it is a comparison of at least two numbers a range refers to the difference between the highest and lowest values thus must contain the highest and lowest value of the range which encompass the entire range of values. Thus, the instant ratio range should be 0.9:1 to 1.2:1.
Claims 12-13 are objected to because of the following informalities: the claims contain an incorrect period after dimethylamine in line 3. This appears that it should instead read -at least 600 g/L of 2,4-D present as isopropylamine and dimethylamine salts; or -at least 600 g/L of 2,4-D present as diethylamine and dimethylamine salts; respectively.
Appropriate correction is required.
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 3-5, 7-8 is/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.
Claims 3-5 appear to be trying to define the amounts of 2,4-D, isopropyl amine/dimethyl amine, and diethylamine and dimethyl amine in the compositions. However, as written the claims do not refer back to the 2,4-D, and the amines claimed in claim 1.
Claim 7 contains the trademark/trade name Terwet 3780® and Teric BL-8®. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe for instance polyethanoxy (15) tallowamine (Terwet 3780®) and alcohol alkoxylate? (Teric BL8) and, accordingly, the identification/description is indefinite.
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.
Claim(s) 1-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ruiz et al. (US2005/0215434, from IDS), and further in view of Morrill (US2767071, from IDS), DE2327189 (from IDS), Sun et al. (US20090305896, from IDS), and Wright et al. (CA2608206C), and as evidenced by WO2010/071936 (from IDS).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Regarding claims 1-3, 8, and 10-16, Ruiz teaches stable at low temperature, specifically temperatures of −8±2 °C which means it resists crystallization over the claimed temperature range of about -4 to about 0 °C, soluble liquid compositions comprising water soluble primary, secondary or tertiary amine salts of 2,4-D (which is how the mixtures of isopropyl and dimethyl amine and the mixtures of diethyl and dimethyl amine will be when mixed with 2,4-D (Which is an acid) thus the combinations of the selected amines with the acids in compositions 11-16 will exist in composition as the 2,4-D amine salts and not as the acid and separate amines as the claims are currently written); glycols as antifreeze agents, specifically they prefer ethylene glycol in amounts of 0.5-15% w/v (which assuming a liter weighs 1000g reads on 5 g/L to 150 g/L), ethoxylated fatty amine humectants (which read on the claimed alkoxylated surfactants/ethoxylated fatty amine surfactants which would broadly include TERWET 3780 which is substantially polyethanoxy (15) tallow amine which is an ethoxylated fatty amine), and an anti-foaming agent in an effective amount (0.01-0.5% w/v, which assuming a liter weighs 1000g reads on 0.1 g/L to 5 g/L), and wherein the formulation includes at least 600 g/L of 2,4-D, specifically about 720 g/L of 2,4-D, because they teach wherein the formulation comprises from 45% to 75% w/v of 2,4-D acid (e.g. gae in the composition is 45% to 75% of the acid form/2,4-D, e.g. from 450gae/L to 750 gae/L which read on the amounts of 2,4-D claimed in the instant claims) which is in the form of amine salts, specifically secondary alkylamine salts, e.g. dimethylamine, and because the compositions are reported to have stability over the claimed temperature ranges then obviously the compositions of Ruiz contain quantities of alkylamine salts, alkoxylate surfactant, and ethylene glycol that allow the compositions to resist crystallization over the claimed temperature range because -6 °C is about -4 °C (and assuming a liter weighs 1000g, the 45-75% w/v of Ruiz would be ~450-750 g 2,4-D) (see entire document; e.g. abstract; [0021-0032]; [0020-0021]; claims 1-3, 6, 8-10).
Regarding claims 1, 4-5, 9, and 11-16, Ruiz teaches wherein extra of the same primary, secondary or tertiary amines are used to form the salts of 2,4-D are then/also used to adjust the pH to between 7.5 and 8.5 and further teaches wherein the ratio of amines to 2,4-D fall within the claimed ratio range of 0.9 to 1.2 (e.g. 0.989) (See example 1; [0036]; [0034]).
Regarding claims 8, 14-16, Ruiz teaches using from 0.5-15 w/v% ethylene glycol as the antifreeze agent, which reads on the claimed amounts of 20 to 50 g/L because assuming a liter weighs 1000g, then 0.5-15% would be from 5 to 150 g/L of ethylene glycol (See [0030]) and these percentages overlap with the claimed g/L calculated in claims 8 and 14-16, e.g. a composition which contains ~1000 grams total/L would contain from 5 to 150 g/L of ethylene glycol.
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
Regarding claims 1-16, Ruiz does not specifically teach wherein the primary, secondary or tertiary amine salts contain the claimed mixtures of isopropylamine/dimethylamine and dimethylamine/diethylamine in the claimed amounts. However, these deficiencies in Ruiz are addressed by Morrill and DE2327189.
Regarding claims 1-16, Morrill teaches liquid herbicide formulations which resist crystallization at low temperatures which comprise 2,4-D in the form of only two alkylamine salts, specifically the instantly claimed combination of isopropyl amine and dimethylamine salts of 2,4-D and Morrill teaches wherein this combination of salts allows for high/higher concentrations of 2,4-D in the formulation, specifically at least 600 g/L of 2,4-D and even more specifically about 720 g/L of 2,4-D as they teach forming a 6lb/gallon of active agent (acid equivalent) per gallon solution which corresponds to about 2.72 kg per gallon (US gallon = 3.785L), which is ~718 g/L (See entire document; Table in column 3; col. 2, ln. 37-41; Col. 2, ln. 56-67; examples particularly Table in col. 3; claims), which reads on claims 1, 3, 11-12, 14-15. Morrill teaches wherein the composition comprises from 1 to 5 mole weights of dimethylamine salts for every mole weight of the isopropylamine salt, which means for every mole of isopropyl amine used to form the salt 1 to 5 moles of dimethylamine are used which reads on claims 4, 11-12, and 14-15 especially since in claims 14-15 applicants claim molar ratios of dimethyl amine to isopropylamine of ~3:1 which falls completely within the ranges taught by Morrill (50 g isopropyl amine to 120 g dimethylamine), and specifically teach a composition comprising 70 wt% of the dimethyl amine salt to 30 wt% of the isopropyl amine salt which corresponds to when using 200 g/L total of the amines, 140 g/L dimethylamine and 60 g/L isopropyl amine which reads on claim 4 (See entire document; e.g. col. 2, ln. 37-41; table in col. 3). Morrill does not teach wherein their compositions comprise the claimed anti-freeze agents and/or surfactant/humectants, specifically the claimed alkoxylated surfactants/the fatty amine ethoxylates of Ruiz.
DE2327189 teaches that it was known to form and use mixtures of diethylamine 2,4-D and dimethylamine 2,4-D in compositions and applications as herbicides, with inert liquids in various amounts/ratios (see Claims 1-4, specifically claim 9; paragraphs beginning with: the invention relates to new dialkylammonium-2,4-dichlorophenoxy…; particularly preferred herbicides of the above formula are dimethyl ammonium-dichlorophenoxyacetate and diethylammonium…; several dialkylammonium-2,4-dichlorophenoxyacetate according to the present invention can be mixed with one another are used as herbicidal agents…; As already mentioned, the inert carrier can also be a….if the active connection is in the porm (form) of a spray is to be applied. The liquid ones…).
Regarding claims 1-16, specifically claims 1, 6-7, 11-16, Ruiz does not specifically teach wherein the alkoxylated surfactant is the claimed ethoxylated tallow amine (Terwet 3780) of claims 6-7, nor does Ruiz teach wherein their ethoxylated/alkoxylated surfactant/humectant is present in an amount of about 20 g/L, though as discussed above they teach wherein the ethoxylated fatty amine which is the genus which includes the instantly claimed/preferred ethoxylated tallowamine, is present in amounts of 1 to 40% by weight which would include the claimed 20 g/L. However, this deficiency in Ruiz is addressed by Sun and Wright.
Sun teaches that tallowamine alkoxylates, specifically tallowamine ethoxylates are known to be compatibility agents for formulating 2,4-D salts, e.g. dimethylamine salts to make them more temperature stable and resist crystallization when in the presence of hard water and other non-amine ions present in the composition, etc. which can cause precipitation/crystallization and nozzle clogging of the 2,4-D amine formulations (See abstract; [0001]; [0004-0007]; [0051]; [0076]; Claims 1-20;).
Wright teaches that it is known to use tallowamine 15 ethoxylate (e.g. Terwet 3780) for formulating effective herbicide compositions, specifically herbicides in the form of salts, e.g. glyphosate salts, and which can comprise 2,4-D salts (See entire document; abstract; [0062]; [0007]; [0091]; [0088-0089]).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have used the specifically claimed amine salt combination (isopropyl amine and dimethyl amine) as claimed, and which is taught by Morrill as the amine salts in the formulations of Ruiz in order to develop the instantly claimed combinations. One of ordinary skill in the art would have been motivated to select these amine salt combinations because Morrill already teaches that the claimed combination of isopropylamine and dimethylamine leads to 2,4-D formulations which have low temperature stability and it would be obvious to add these as the 2,4-D amine salts to be used in Ruiz because this combination of salts leads to increased low temperature stability by the addition of the anti-freeze agents and the specific humectants which are the same alkoxylated surfactants instantly claimed, specifically fatty amine ethoxylates, and as such when the claimed combination of isopropyl amine and dimethyl amine in the claimed ratios as taught by Morrill is used as the primary and secondary amines in the formulation of Ruiz which contains ethylene glycol a known anti-freeze agent in amounts/concentrations which overlap those instantly claimed and which is known in the art to reduce crystallization as is evidenced by WO2010071936 (see [0026]), and with the claimed alkoxylated surfactants/humectants, specifically ethoxylated fatty amines, more specifically tallow amine ethoxylates such as Terwet 3780 which are taught by Ruiz, Sun, and Wright to be effective for formulating 2,4-D and other herbicidal salts and which are also known in the art to provide low temperature stability to 2,4-D amine salt formulations as per Sun. Thus, it would be obvious to include these blends of amine salts of 2,4-D as the amine salts of Ruiz in the claimed amounts in order to provide compositions which exhibit low temperature stability over the claimed range of about -4 to 0 °C because Ruiz already teaches wherein their compositions exhibit low temperature stability over the same/overlapping range as the -6 °C taught by Ruiz is about -4 °C. Thus, it would be obvious to combine the claimed combination of amine salts as taught by Morrill into the formulation of Ruiz in the claimed amounts in order to provide formulation which resists crystallization at the claimed temperatures of about -4 to 0°C and with high amounts of 2,4-D which would be more efficient for storage, etc. for the end user. 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. “[W]here 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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It also would have been obvious for one of ordinary skill in the art to select the claimed combination of dimethylamine and diethylamine salts of 2,4-D to use in the formulation of Ruiz as is instantly claimed, because the combination was already known in the art as is taught by DE2327189 as discussed above, see for instance claim 9, and because Ruiz clearly teaches that secondary amines, such as the claimed mixture of dimethylamine and diethylamine as taught by DE2327189, are very useful for formulating effective herbicidal 2,4-D mixtures which have low temperature stability over the claimed ranges when combined with ethylene glycol and humectants/surfactants which are preferably alkoxylated surfactants/ethoxylated fatty amines as is taught by Ruiz. Thus, it would be obvious to place the known claimed mixture of dimethylamine and diethylamine salts of 2,4-D at the claimed loadings which are taught by Ruiz with the claimed ethylene glycol as an antifreeze agent in the claimed amounts/concentrations of the instant claims (e.g. claims 5, 11, 13 and 16) with the claimed surfactants which were also known to be effective for formulating low temperature stable 2,4-D amine salt formulations in order to form additional amine salt formulations of 2,4-D which are concentrated and effective as herbicides and temperature stable thereby taking up less space and being more cost effective for the end user.
Regarding the specifically claimed amounts of the claimed agents that are instantly claimed in claims 4-5, 7-8, 11-16, as discussed above Ruiz and Morrill teach loading 2,4-D amine salts at the claimed concentrations in liquid herbicidal formulations and it would have been obvious to optimize the amounts of ethylene glycol to be the claimed g/L claimed in claims 8 and 14-16 as applicant’s are making compositions which contain amounts which lie within the claimed percentages taught by the prior art Ruiz especially since ethylene glycol is a known anti-freeze agent and resists crystallization, and ethoxylated fatty amines are a family of surfactants within applicant’s claimed alkoxylated surfactants genus, and this family of surfactants/humectants in Ruiz contains the claimed ethoxylated tallowamine and Ruiz also teaches incorporating the ethylene glycol (in amounts of 0.1 to 20%) and fatty amine ethoxylates (in amounts of 1 to 40%) into the low temperature stable primary, secondary, and tertiary amine salts of 2,4-D formulation(s) (in amounts of 45-75%). It also would have been obvious to use the claimed 20 g/L of alkoxylate surfactant because it was known in art to use from 1-40% of the claimed humectants, specifically ethoxlated fatty amines which are alkoxylated surfactants, which would read on/include the claimed ethoxylated tallowamine. It would have been obvious to perform such optimization because, “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. ‘[W]here 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.’” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Regarding the claimed amounts of the claimed amine mixtures claimed in claims 4-5 and 14-16 it would have been obvious to one of ordinary skill in the art to optimize the claimed amounts of isopropyl amine and dimethyl amine to the claimed amounts claims in claims 4, and 14-15 because these amounts fall within the claimed molar ratios taught by Morrill to be effective for forming low temperature stable 2,4-D formulations and which would be useful for optimization in the compositions of Ruiz which are known to resist crystallization at the claimed temperatures and are known to contain primary, secondary or tertiary amines, and this type of optimization is something that one of ordinary skill in the art would routinely do to afford the most effective, temperature stable/resists crystallization composition of dimethylamine/isopropylamine salts of 2,4-D in the low temperature stable formulations of Ruiz. 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. “[W]here 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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding the claimed amounts of dimethylamine and diethylamine claimed in claim 5 and 16, this combination was known in the art to be herbicidally effective as is taught by DE2327189, and Ruiz teaches that it was known to use secondary amines such as those taught by DE2327189 to form low temperature stable 2,4-D liquid formulations which resist crystallization and as such it would have been obvious to optimize the amount the diethylamine and dimethylamine in the formulation to afford the most effective mixture which resists crystallization at the claimed temperatures of about -4 to 0°C and it would have been obvious to start with the ratios Morrill teaches for formulating the similar amine salt compositions of dimethylamine and isopropylamine 2,4-D formulations which teach using at least a 1:1 ratio of dimethylamine to the additional amine, up to a 5:1 ratio of dimethylamine to the second amine because DE2327189 clearly teaches that dimethylamine is the more active amine (In its herbicidal effect, the dimethylammonium derivative surpasses the diethylammonium derivative), and Ruiz and Morrill teach that formulations which comprise higher amounts of dimethylamine resist crystallization at lower temperatures. Further, all of the claimed amounts of dimethylamine and diethylamine fall within the claimed ratios of dimethyl amine to the additional amine (Specifically isopropyl amine) that are taught by Morrill. Thus, it would be obvious to optimize the amounts of dimethylamine and diethylamine in combination as taught by DE2327189 for incorporation into the formulation of Ruiz as the secondary amines for forming compositions which resist crystallization at the claimed low temperature ranges as taught in Ruiz. 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. “[W]here 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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It would have been obvious to select as the fatty amine ethoxylate surfactant of Ruiz the claimed Terwet 3780 because it was known to use such tallow amine ethoxylates for formulating herbicide salt compositions which comprise 2,4-D and as is taught by Sun these surfactants are useful for effectively formulating compositions comprising 2,4-D salts, e.g. dimethylamine salts in order to make them more temperature stable and resist crystallization when in the presence of hard water and other non-amine ions present in the composition, etc. which can cause precipitation/crystallization and nozzle clogging of the 2,4-D amine formulations thus it would be obvious to select these for use in as the fatty amine alkoxylates of Ruiz for formulating the claimed 2,4-D salts to provide these benefits to the resulting compositions.
Finally, it would have been obvious for one of ordinary skill in the art to optimize the amounts of each of the components to align with the amounts instantly claimed for the each of the claimed surfactants, ethylene glycol, etc. because each of these agents were known in the art to contribute to the low temperature stability of the claimed amine salts of 2,4-D and in the case of ethylene glycol also known to reduce crystallization. Thus, it would be obvious to optimize the amounts of these agents to lead to formulations which resist crystallization over the specifically claimed temperature ranges in order to afford compositions which resist crystallization at the claimed range of from -4 to 0 °C. “[W]here 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.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Erin E Hirt whose telephone number is (571)270-1077. The examiner can normally be reached 10:30-7:30 ET M-F.
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/ERIN E HIRT/Primary Examiner, Art Unit 1616
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