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 16-27 are pending and are currently under consideration.
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) 16-28 (all claims currently under consideration) is/are rejected under 35 U.S.C. 103 as being unpatentable over Massa et al (WO 2016/113334) (US 2017/0253897) and Sievernich et al (WO 2009/141367)(both IDS References).
Massa teaches a composition comprising L-glufosinate (see entire document, for instance, page 24, lines 12-22). The L-glufosinate is taught as being the L-glufosinate ammonium (see entire document, for instance, page 24, lines 12-22). Green further teaches that pyrimidinedione herbicides can be utilized in the composition, and teaches II-83/S-3100 is a known pyrimidinedione herbicide (see entire document, for instance, page 9, lines 14-29). The composition is useful for treating glufosinate resistant or tolerant natural or genetically engineered corn (see entire document, for instance, page 42, lines 20-26.
Massa, while teaching all of the instantly claimed components, does not directly teach the ratio of the L-glufosinate to II-83/S-3100.
Sievernich teaches an herbicidal composition comprising herbicides A, B, and C, wherein herbicide A is taught as being a salt of glufosinate, including ammonium salt, herbicide B is pyroxasulfone, and C is taught as being a pyrimidinedione herbicide useful for treating corn (see entire document, for instance, Abstract, claim 1, page 5, lines 25-26, page 33, lines 33-34, page 98, lines 19-30, and page 99, lines 32-38). Sievernich teaches that the ratio of herbicide A to herbicide B is preferably 100:1 to 1:2 (see entire document, for instance, page 5, lines 35-37). Sievernich teaches a ratio of B (pyroxasulfone) to C.2.1 (saflufenacil, a pyrimidinedione herbicide, the same class as II-83/S-3100) of 1:100 to 100:1 (see entire document, for instance, the page 57, No. 20). Sievernich teaches that the herbicides can be applied simultaneously (see entire document, for instance, page 3, lines 8-10). Sievernich further teaches that the composition is a useful herbicide for crop plants that are resistant to glufosinate (see entire document, for instance, paragraph bridging pages 99 and 100). The composition can be applied pre- or post-emergence (see entire document, for instance, page 108, lines 24-34).
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 the L-glufosinate and II-83/S-3100 of Massa in the instantly claimed amounts since Sievernich directly teaches glufosinate and pyrimidinedione herbicides (such as II-83/S-3100) are useful for herbicidal compositions in amounts that directly overlap the instantly claimed range. It is noted that MPEP 2144.05 states: “In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997). Further, it is noted that MPEP 2144.05 states: "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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).”
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 on 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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