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 .
Claims 16-33 are pending and are currently under consideration.
Claims 1-15 are cancelled.
Claims 16-33 are newly added.
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) 16-33 (all claims currently under consideration) is/are rejected under 35 U.S.C. 103 as being unpatentable over Ikeda (JP 2012232943)(IDS Reference), Ikeda US (US 20170079271), and Green et al (US 2017/0253897)(all IDS references).
Ikeda JP teaches an herbicidal composition comprising triaziflam in combination with glufosinate (see entire document, for instance, Abstract). The glufosinate is taught as being glufosinate ammonium salt (see entire document, for instance, [0012] for component C and [0016] for component B). The triaziflam and glufosinate are taught as being administered simultaneously (see entire document, for instance, [0008]). The composition is taught as being applied to kill weeds in orchards (see entire document, for instance, [0020]). The amount of the glufosinate (component A) is taught as being 100-30,000 g/ha and triaziflam (component B) is taught as being 10-10,000 g/ha (see entire document, for instance, [0019]). The ratio of the glufosinate (component A) to triaziflam (component B) is taught as being 1:1 (see entire document, for instance, [0041]). Ikeda JP further teaches that the composition can include solid or liquid carriers (see entire document, for instance, [0022] and [0023]).
Ikeda JP, while teaching the combination of triaziflam and glufosinate, does not directly teach that the glufosinate is L-glufosinate. Further, while teaching that the composition is applied to kill weeds in orchards, does not directly indicate that the orchard is a nut tree orchard, or that the crop is glufosinate tolerant.
Ikeda US teaches compositions which can comprise L-glufosinate ammonium (glufosinate-P-ammonium) and triaziflam (see entire document for instance, [0115] and [0016]). The composition is useful in orchards, wherein orchards are taught as including tree nuts like chestnuts, walnuts, almonds, etc. (see entire document for instance, [0048]). Ikeda US further teaches a method of applying the composition to the surface of a soil before sowing seeds of crops and before weed emergence (see entire document, for instance, [0124]).
Green teaches that L-glufosinate is much more potent than D-glufosinate (see entire document for instance, [0003]). Green teaches a method of making L-glufosinate where the L-enantiomer is 99% of the composition (see entire document, for instance, [0010]). Green further teaches that since L-glufosinate is more potent than D-glufosinate, smaller amounts of the composition are needed to be effective as an herbicide (see entire document, for instance, [0013]). Green further teaches that the L-glufosinate can be combined with additional herbicides, such as triaziflam (See entire document, for instance, [0100]). Green additionally teaches that the field or area can contain a crop of planted seeds or crops that are resistant to glufosinate (see entire document, for instance, [0102]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the instantly claimed invention to utilize L-glufosinate ammonium of Ikeda US or Green for the unspecified glufosinate ammonium of Ikeda JP. One would have been motivated to do so since Green teaches that L-glufosinate is much more potent than D-glufosinate. There would be a reasonable expectation of success since Green teaches a method of making L-glufosinate with a high level of purity which can be combined with triaziflam.
It further would have been obvious to one of ordinary skill in the art, before the effective filing date of the instantly claimed invention, to utilize the composition in nut orchards since Ikeda JP teaches the use of the composition in orchards and Ikeda US teaches that composition with the same components can be utilized in orchards which comprise nut trees.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TREVOR M LOVE whose telephone number is (571)270-5259. The examiner can normally be reached M-F typically 6:30-3.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany Barham can be reached at 5712726175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TREVOR LOVE/Primary Examiner, Art Unit 1611
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