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 .
Priority
This application is a Continuation of 19258402, filed 7/2/2025; 19258402 is a Continuation of 19186223, filed 04/22/2025; 19186223 is a Continuation of 18435544, filed 02/07/2024, now U.S. Patent # 12305207; 18435544 is a Continuation of 18179136, filed 03/06/2023, now U.S. Patent # 11913048; 18179136 is a Continuation of 17530018, filed 11/18/2021, now U.S. Patent # 11905538; 17530018 is a Continuation of 16997133, filed 08/19/2020, now U.S. Patent # 11560577; 16997133 is a Continuation of 16287290, filed 02/27/2019, now U.S. Patent # 10781465; 16287290 is a Continuation of 15787448, filed 10/18/2017, now U.S. Patent # 10260078; 15787448 is a Divisional of 15445254, filed 02/28/2017, now U.S. Patent # 9834802; 15445254 Claims Priority from Provisional Application 62413240, filed 10/26/2016; 15445254 Claims Priority from Provisional Application 62336989, filed 05/16/2016; 15445254 Claims Priority from Provisional Application 62302421, filed 03/02/2016.
Information Disclosure Statement
The IDS filed on 7/31/2026 has been considered. See the attached PTO 1449 form.
Claim Status
Receipt of Remarks filed on 7/23/2026 is acknowledged. Claims 1-24 are currently pending and presented for examination on the merits for patentability.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Terminal Disclaimer
The terminal disclaimers filed on 7/23/2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of US10260078, US11732281, US11905538, US12305206, and any patent granted on Application Number 19/372,848 has been reviewed and is accepted. The terminal disclaimer has been recorded.
New/Maintained Claim(s) Objection(s)/Rejection(s)
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.
Claims 1-24 are rejected under 35 U.S.C. 103 as being unpatentable over Long (US8445406B2; May 21, 2013) in view of Albizati et al. (US8981142B2; Mar. 17, 2015) and Bhoge et al. (US10888095B2; claims priority to Jan. 19, 2015).
Long throughout the reference teaches stable concentrated herbicidal compositions. Long teaches the composition comprising surfactant alkyl ether sulfate, specifically sodium lauryl ether sulfate, in an amount of 3-35% by weight. The composition further comprising organic solvent such as dipropylene glycol in an amount of 1-20% by weight, and alkyl polysaccharide/alkyl polyglucoside in an amount 1-15% by weight. Long teaches the composition also comprises water (diluent). The composition also includes water soluble herbicide of formula I and specifically glufosinate. Long teaches the formula I is intended to encompass all stereoisomers and mixtures thereof. The L enantiomer has been observed to be the biologically active isomer. Long teaches the composition comprises L-enantiomer glufosinate and its ammonium salt in an amount of 20%-35% per weight of the composition. Long teaches that because the water-soluble herbicidal ingredient is typically provided in a 50 percent by weight aqueous solution, an equal amount of water is usually provided with the water-soluble herbicidal ingredient. Additional water may be added as necessary. As such, an equal amount of water would mean 20%-35%, and additional water amount can be included in the composition. (Abstract; col. 1, Summary of the invention; col. 2, lines 39-67; col. 3, lines 10-67; col. 4, lines 1-67; col. 5, lines 1-19; Also see Examples 1 to 9, Table, col. 6; Examples 10 to 12, col. 7-8; Table Examples 13-14, col. 9-10; claims and entire document).
As mentioned above, Long teaches the formula I is intended to encompass all stereoisomers and mixtures thereof, however, Long does not expressly teach composition comprises D-glufosinate ammonium wherein the formulation has greater than 90% L-glufosinate. However, Albizati cures this deficiency.
Albizati teaches D,L-phosphinothricin (commonly referred to as glufosinate) and its salts and esters are known to be useful as a broad spectrum, non-selective herbicide. The ammonium salt of phosphinothricin is the most common commercially available form. The herbicidal efficacy of L-phosphinothricin or salts and esters thereof is generally about twice that of other stereoisomers, thereby generally requiring a reduced proportion of herbicide to provide the desired effect. Thus, the use of the L-stereoisomer is economically and ecologically advantageous and there exists a need for an economical stereoselective process that preferentially produces L-phosphinothricin products or precursors thereof. The enzymatic hydrolysis processes of the present invention provide a higher yield of the L-phosphinothricin product. The processes of the present invention provide a product mixture comprising D and L-stereoisomers of the phosphinothricin product. The yield of the L-phosphinothricin product is greater than about 90%. The weight ratio of the L-phosphinothricin product to the D-phosphinothricin product produced is greater than about 20:1. (see e.g. Background of the Invention; Enzymatic Hydrolysis section II; Claims; Entire Document).
Long and Albizati do not teach the composition further comprises 1-methoxy-2-propanol in an amount from 0.5-2% by weight. However, Bhoge cures this deficiency.
Bhoge also teaches stable herbicidal compositions comprising glufosinate. Bhoge teaches the herbicidal composition comprises organic solvent wherein the organic solvent includes propylene glycol and 1-methoxy-2-propanol. (see e.g. abstract; claims; entire document).
It would have been prima facie obvious to one of ordinary skill in the art to have combined the teachings of Long and Albizati and incorporate the D and L stereoisomers wherein the L stereo isomer is greater than about 90% or the weight ratio of the L-phosphinothricin product to the D-phosphinothricin product is greater than about 20:1, as taught by Albizati. One would have been motivated to do so because Long teaches the formula I (e.g. glufosinate) is intended to encompass all stereoisomers (e.g. D and L stereoisomers) and mixtures thereof. The L enantiomer has been observed to be the biologically active isomer. Albizati teaches the herbicidal efficacy of L-phosphinothricin (L-glufosinate) is generally about twice that of other stereoisomers, thereby generally requiring a reduced proportion of herbicide to provide the desired effect. Thus, the use of the L-stereoisomer is economically and ecologically advantageous and there exists a need for an economical stereoselective process that preferentially produces L-phosphinothricin products or precursors thereof. The enzymatic hydrolysis processes of the present invention provide a higher yield of the L-phosphinothricin product. The processes of the present invention provide a product mixture comprising D and L-stereoisomers of the phosphinothricin product. The yield of the L-phosphinothricin product is greater than about 90%. The weight ratio of the L-phosphinothricin product to the D-phosphinothricin product produced is greater than about 20:1. As such, it would have been obvious to one skilled in the art to combine the teaching of Long and Albizati and use to process of Albizati to prepare glufosinate having 90% L-glufosinate over D-glufosinate because L stereoisomer was known to be the active form and Albizati teaches a process which produces greater than 90% L-glufosinate.
It would have been prima facie obvious to one of ordinary skill in the art to have combined the teachings of Long, Albizati and Bhoge and further include 1-methoxy-2-propanol in the formulation of Long. As discussed supra, Long teaches the herbicidal composition comprises organic solvent such as propylene glycol and dipropylene glycol. Bhoge teaches the herbicidal composition comprises organic solvent wherein the organic solvent includes propylene glycol and 1-methoxy-2-propanol. Thus, one skilled in the art would have found it prima facie obvious to include the known organic solvents such as propylene glycol, dipropylene glycol and 1-methoxy-2-propanol. It would have been obvious to one of ordinary skill in the art to substitute the organic solvents known in the art as a person with ordinary skill has good reason to pursue known options within his or her technical grasp. see MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Regarding the amounts/concentrations of the claimed components, as discussed supra, the cited prior art references teach amounts/concentrations which overlap the claimed amounts/concentrations. It would have been obvious to optimize the amounts/concentrations to achieve the optimal herbicidal effect from the composition. 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).
From the combined teaching of the cited reference, 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.
Response to Arguments
Applicant's arguments, filed 7/23/2026, with respect to the 103 rejection have been fully considered but they are not persuasive.
Applicant appear to argue that while Albizati teaches phosphinothricin products (glufosinate or salts or ester thereof) prepared and recovered in accordance with the invention may be included in herbicidal formulation along with various other component, Albizati does not teach herbicidal formulations containing specific components such as sodium alkyl ether sulfate and alkyl polysaccharide. Applicant argued that Albizati does not teach a finished herbicidal formulation and there is no mention of the specific weight ratio of L-phosphinothricin to D-phosphinothricin in a herbicidal formulation. It was also argued that Long does not teach a composition comprising D-glufosinate and wherein the formulation has greater than about 90% L-glufosinate. Applicant argued that Bhoge also does not teach a composition comprising D-glufosinate wherein the formulation has greater than about 90% L-glufosinate.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). As mentioned above, Long teaches the formula I (e.g. glufosinate) is intended to encompass all stereoisomers (e.g. D and L stereoisomers) and mixtures thereof. The L enantiomer has been observed to be the biologically active isomer. Albizati teaches the herbicidal efficacy of L-phosphinothricin (L-glufosinate) is generally about twice that of other stereoisomers, thereby generally requiring a reduced proportion of herbicide to provide the desired effect. Thus, the use of the L-stereoisomer is economically and ecologically advantageous and there exists a need for an economical stereoselective process that preferentially produces L-phosphinothricin products or precursors thereof. The enzymatic hydrolysis processes of the present invention provide a higher yield of the L-phosphinothricin product. The processes of the present invention provide a product mixture comprising D and L-stereoisomers of the phosphinothricin product. The yield of the L-phosphinothricin product is greater than about 90%. The weight ratio of the L-phosphinothricin product to the D-phosphinothricin product produced is greater than about 20:1. As such, it would have been obvious to one skilled in the art to combine the teaching of Long and Albizati and use to process of Albizati to prepare glufosinate having 90% L-glufosinate over D-glufosinate because L stereoisomer was known to be the active form and Albizati teaches a process which produces greater than 90% L-glufosinate.
Further, as acknowledged by applicant, Albizati teaches phosphinothricin products (glufosinate or salts or ester thereof) prepared and recovered in accordance with the invention may be included in herbicidal formulation along with various other components. Albizati clearly suggests that the phosphinothricin products can be used in herbicidal formulation and Albizati teaches that the yield of the L-phosphinothricin product is greater than about 90%. The weight ratio of the L-phosphinothricin product to the D-phosphinothricin product produced is greater than about 20:1. As discussed supra, Long already teaches the herbicidal formulation comprising components such as sodium alkyl ether sulfate and alkyl polysaccharide. Thus, even if Albizati does not expressly disclose the phosphinothricin product and components such as sodium alkyl ether sulfate and alkyl polysaccharide in a herbicidal formulation, Long already teaches components such as sodium alkyl ether sulfate and alkyl polysaccharide in a herbicidal formulation along with glufosinate which is intended to encompass all stereoisomers, and Albizati provides the motivation to use a product wherein the weight ratio of the L-phosphinothricin product to the D-phosphinothricin product produced is greater than about 20:1 or wherein the yield of the L-phosphinothricin product is greater than about 90%. Therefore, applicant’s arguments regarding Albizati not teaching a finish herbicidal formulation having all the claimed components or Long not teaching the claimed percentage of L-glufosinate are not found persuasive at this time.
Further, as discussed supra, Bhoge is utilized because the combination of Long and Albizati do not teach the composition further comprises 1-methoxy-2-propanol. As discussed above, Long teaches the herbicidal composition comprises organic solvent such as propylene glycol and dipropylene glycol. Bhoge teaches the herbicidal composition comprises organic solvent wherein the organic solvent includes propylene glycol and 1-methoxy-2-propanol. Thus, one skilled in the art would have found it prima facie obvious to include the known organic solvents such as propylene glycol, dipropylene glycol and 1-methoxy-2-propanol. It would have been obvious to one of ordinary skill in the art to substitute the organic solvents known in the art as a person with ordinary skill has good reason to pursue known options within his or her technical grasp. see MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/ALI S SAEED/Examiner, Art Unit 1616
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