DETAILED ACTION
Receipt is acknowledged of applicant’s Amendment/Remarks filed 12/3/2025.
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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12/3/2025 has been entered.
Status of the Claims
Claims 1 and 10 have been amended. Claims 4, 8, 15 and 18 are cancelled. No claims are newly added. Accordingly, claims 1-3, 5-7, 9-14, 16, 17 and 19-22 remain pending in the application and are currently under examination.
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 1-3, 5-7, 9-13, 21 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Allison (USPN 2,726,188, Dec. 6, 1955, hereafter as “Allison”) in view of Jung et al. (US 2014/0005235 A1, Jan. 2, 2014, hereafter as “Jung”), Soloway (“Naturally Occurring Insecticides”, Environmental Health Perspectives, 1976, Vol. 14, pp. 109-117; hereafter as “Soloway”), Casida (“Pyrethrum Flowers and Pyrethroid Insecticides”, Environmental Health Perspectives, 1980, Vol. 34, pp 189-202; hereafter as “Casida”), Xu (CN103931680A, Jul. 23, 2014, hereafter as “Xu”), US EPA (“Reregistration Eligibility Decision Exposure and Risk Assessment on Lower Risk Pesticide Chemicals Sabadilla Alkaloids”, Sep. 27, 2004, hereafter as “EPA”), Tamarkin et al. (US 2007/0020304 A1, Jan. 25, 2007, hereafter as “Tamarkin”), Stein et al. (US 2002/0197295, Dec. 26, 2002, hereafter as “Stein”) and Parker et al. (US 2003/0138500 A1, Jul. 24, 2003, hereafter as “Parker”) as evidenced by Merriam-Webster (see PTO-892).
The instant invention is drawn to a pesticidal mixture comprising an effective synergistic amount of an active ingredient consisting of sabadilla alkaloids and a pyrethroid selected from the group consisting of esfenvalerate and permethrin, wherein the sabadilla alkaloids and the pyrethroid are at a concentration that provides synergistic control of a pest and at a concentration ratio from about 1:15 to about 100:1; and a method of controlling a pest comprising applying said pesticidal mixture to the pest or pest’s environment.
Regarding instant claims 1, 5-7, 10-13, 21 and 22, Allison teaches a method of controlling thrips (a type of insect plant pest, aka Thysanoptera) with a mixture of sabadilla and pyrethrins comprising applying said mixture to a plant bearing thrips (column 2, lines 18-31; column 3, line 75 – column 4, line 1; claim 1). Said mixture contains about 40-60% sabadilla seed and about 20-30% pyrethrum marc (column 2, lines 63-66). Allison teaches that a mixture of sabadilla seed with pyrethrins is synergistic (column 1, lines 42-46) to thrips (Thysanoptera) (column 2, lines 18-25). Allison teaches pyrethrum marc contains 0.1 to 0.6 percent by weight of pyrethrins (column 2, lines 28-31).
Allison does not expressly teach a pesticidal mixture comprising sabadilla alkaloids and one of the claimed pyrethroids (synthetic analogs of pyrethrin) as the only active ingredients (instant claims 1 and 10) nor the particular pests claimed in instant claims 13 and 22.
However, Jung teaches that Sabadilla alkaloids, veratridine and cevadine, (p. 32, column 2, lines 22-23, p. 32, column 2, last 5 lines, p. 31, column 1, lines 32-33) have been known in the art as pesticides, known to be useful in combination with other pesticides, and has a broad spectrum activity against various pests, including Diptera and Aedes aegypti (paragraphs [0107]-[0109]). Jung also teaches that pyrethroids, including permethrin and esfenvalerate, have been known in the art as pesticides, similar to pyrethrins, and are known to be used with other known pesticides (paragraphs [0245], [0250] and [0353]).
Soloway teaches that pyrethrum and sabadilla are old and well-known naturally occurring insecticides against a variety of pests including Aedes aegypti (a Mosquito) and Musca domestica (housefly) (abstract; Tables 2, 6, 9 and 11 at pages 111-114). Soloway further reveals that pyrethrins are the active ingredients found in pyrethrum (0.9-1.3%) and sabadilla alkaloids are the active ingredients in sabadilla seed (0.3%) as well as the particular sabadilla active components, cevadine and veratridine (Tables 2 and 5 at page 111; page 112).
Casida teaches that pyrethroids, such as permethrin, are synthetic analogs of the natural product Pyrethrum ester, having the same core structure and similar pesticidal activity, but are more potent and stable. Pyrethroids, such as permethrin, have been used in the art as pyrethrum substitutes. See, particularly, abstract, Table 1; Figure 2 and pages 189-190, 195-196.
Xu teaches a mixture comprising veratrine (a mixture of veratridine and cevadine) and tetrafluoromethrin (dimefluthrin, a pyrethroid) useful for controlling mosquitos (abstract; [0007]-[0010] and [0013]).
Therefore, it would have been prima facie obvious to a person of ordinary skill in the art, at the time before the effective filing date of the claimed the invention, to use a known synthetic pyrethroid, such as permethrin or esfenvalerate, in place of pyrethrum mac (pyrethrin) in Allison’s composition and method for controlling pests including thrips (Thysanoptera) or Aedes aegypti (yellow fever Mosquito). A person of ordinary skill in the art would have been motivated to do so because the prior art teaches that pyrethroids are known to be similarly useful as pyrethrin and are more available than the natural products. Further, a mixture of sabadilla alkaloid and pyrethroid has been known in the art for controlling pests.
Allison, Jung, Soloway, Casida and Xu are silent to the limitations regarding the claimed concentrations and the claimed ratio of sabadilla alkaloids to the pyrethroid (instant claims 1, 6 and 7).
Regarding the concentration of sabadilla alkaloids, EPA teaches sabadilla alkaloids are insecticides used for the control of citrus thrips and other species of thrips. The alkaloids are obtained as an extract from the ground seeds from the sabadilla plant, with the primary insecticidal component being veratrine (CAS No. 8051-02-3), consisting of a complex mixture, with the two primary alkaloids being cevadine (crystalline veratrine) and veratridine (amorphous veratrine) (page 3, 1st paragraph). EPA teaches that there is a registered product containing sabadilla as an active ingredient (EPA Registration Number 39834-1) comprising 0.2% sabadilla alkaloids (page 3, 2nd paragraph).
The references are all drawn to insecticides, thus, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the invention to include sabadilla alkaloids in a concentration of 0.2% as suggested by EPA into the invention of Allison/ Jung/Soloway/Casida/Xu with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to do so because EPA teaches a pesticidal composition comprising sabadilla alkaloids at 0.2% as an effective pesticidal amount.
Regarding the concentration of a pyrethroid, Tamarkin teaches an insecticidal composition comprising an insecticide (abstract). In one or more embodiments, the insecticide is a pyrethroid including those listed in instant claim 1, e.g., esfenvalerate and permethrin ([0048] and [0056]). In one or more embodiments, the insecticide is a botanical insecticide such as sabadilla ([0035]). Mixtures of insecticides may also be employed ([0059]). Tamarkin teaches that the insecticide composition are intended for the treatment of infestations of various insects including fleas and mites ([0132]). Tamarkin also specifically teaches that depending on the severity of the insect infestation and the target site, the concentration of permethrin can range from 0.1% and 10% ([0136]).
Stein teaches materials impregnated with an insecticide, specifically, a synthetic pyrethroid such as permethrin (abstract). Said permethrin is present in an amount of about 0.1% to about 2% ([0066]). Particular insects taught include flies, ant, termites, and other crawling insects ([0012] and [0024]).
Parker teaches a pesticidal composition comprising a mixture of sulfur combined with pyrethrins and/or pyrethroids (abstract). Particular pyrethroids are taught as suitable including those in the instant claims ([0016]). Said pyrethroid is preferably used in a concentration of about 10 ppm to 400 ppm (0.001% to 0.04%) ([0018]). Particular pests taught include mites, aphids, whiteflies, caterpillars and beetles ([0029]).
The references are all drawn to insecticides, thus, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the invention to include a pyrethroid such as esfenvalerate or permethrin in a concentration from about 0.0005% to about 0.5% with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to do so because Tamarkin, Stein and Parker all teach pesticidal compositions comprising a pyrethroid in effective amounts that are encompassed or overlapping with the claimed amounts of pyrethroid. 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”. MPEP 2144.05 also 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.’”. Furthermore, it would have been prima facie obvious to a skilled artisan before the effective filing date of the invention to optimize the amount of pyrethroid by way of routine experimentation because the references teach generally acceptable pyrethroid concentrations and is not inventive to discover the optimum or workable ranges.
Regarding the ratio of the sabadilla alkaloids to the pyrethroid, the EPA, Tamarkin, Stein and Parker references, as discussed above, teach generally effective pesticidal amounts of sabadilla alkaloids (0.2%) and pyrethroids (0.001% - 10%). Converting the percentages yields a ratio range of sabadilla alkaloids to a pyrethroid as 1:50 to 200:1. 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”. MPEP 2144.05 also states, “[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). It would have been prima facie obvious to a skilled artisan before the effective filing date of the invention to optimize the ratio of sabadilla alkaloids to pyrethroid by way of routine experimentation because the references teach generally acceptable sabadilla alkaloid and pyrethroid concentrations and is not inventive to discover the optimum or workable ranges. Furthermore, a composition of sabadilla alkaloids and the analogs of pyrethrin (pyrethroids) in the amounts/ratios taught by the prior art would have reasonably been expected to have a synergistic effect similar to a sabadilla/pyrethrin composition as the synthetic analogs of pyrethrin (pyrethroids) would have been expected to function similarly to pyrethrin.
Regarding instant claim 2, Allison further teaches that the seed of the sabadilla plant, is also known as Schoenocaulon (column 1, lines 21-22). Sabadilla is also known as a Mexican plant (Schoenocaulon officinale) of the lily family as evidenced by Merriam-Webster. As discussed above, the sabadilla alkaloids are derived from the sabadilla seed which is from Schoenocaulon officinale. Thus, the references implicitly teach “the sabadilla alkaloids are derived from Schoenocaulon officinale”.
Regarding instant claim 3, Jung and EPA, discussed above, teach the particular Sabadilla alkaloids, veratridine and cevadine (or collectively known as veratrine).
Regarding instant claim 9, Allison teaches agents added to the mixture, which are closely equivalent to those described in instant claims, including spreaders, sticking agents, and dispersing agents (dispersants) (column 4, lines 21-25) as well as water (solvent) (col. 2, line 69).
Thus, the combined teachings of Allison, Jung, Soloway, Casida, Xu, EPA, Tamarkin, Stein and Parker render the instant claims prima facie obvious.
Claims 14, 16, 17, 19 and 20 are rejected under 35 U.S.C. 103(a) as being unpatentable over Allison (USPN 2,726,188, Dec. 6, 1955, hereafter as “Allison”) in view of Jung et al. (US 2014/0005235 A1, Jan. 2, 2014, hereafter as “Jung”), Soloway (“Naturally Occurring Insecticides”, Environmental Health Perspectives, 1976, Vol. 14, pp. 109-117; hereafter as “Soloway”) and Casida (“Pyrethrum Flowers and Pyrethroid Insecticides”, Environmental Health Perspectives, 1980, Vol. 34, pp 189-202; hereafter as “Casida”), Xu (CN103931680A, Jul. 23, 2014, hereafter as “Xu”), US EPA (“Reregistration Eligibility Decision Exposure and Risk Assessment on Lower Risk Pesticide Chemicals Sabadilla Alkaloids”, Sep. 27, 2004, hereafter as “EPA”), Tamarkin et al. (US 2007/0020304 A1, Jan. 25, 2007, hereafter as “Tamarkin”), Stein et al. (US 2002/0197295, Dec. 26, 2002, hereafter as “Stein”) and Parker et al. (US 2003/0138500 A1, Jul. 24, 2003, hereafter as “Parker”) as evidenced by Merriam-Webster (see PTO-892), as applied to claim 10 above, in further view of Babcock et al. (USPN 8,232,301 B2, Jul. 31, 2012, hereafter as “Babcock”).
The instant invention is described above.
The teachings of Allison, Jung, Soloway, Casida, Xu, EPA, Tamarkin, Stein and Parker have been discussed above.
Allison, Jung, Soloway, Casida, Xu, EPA, Tamarkin, Stein and Parker as a whole do not expressly the particular concentration rate of pesticides applied in the field (instant claims 14, 16, 17, 19 and 20).
However, Babcock teaches pesticidal mixtures that include sabadilla and pyrethrin (column 9, lines 45, and 51) and are used to control pests such as aphids and other sucking insects (column 1, lines 34-36), and in other embodiments wherein the pests include flies, beetles, roaches, arachnids (such as mites), and white flies (column 7). Babcock teaches that in general, concentration rates from about 0.01 grams of pesticide per hectare to about 5000 grams of pesticide per hectare are expected to provide good control (column 15, lines 1-3), which encompasses the application rates of instant claims 14, 16, 17, 19 and 20.
Therefore, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to optimize the particular concentration rate of pyrethroid and sabadilla alkaloids by way of routine experimentation as suggested by Babcock into the invention of Allison/Jung/Soloway/Casida/Xu/EPA/Tamarkin/Stein/Parker with a reasonable expectation of success. A person of ordinary skill in the art would have been motivated to do so because the prior art teaches that the pesticides have been known as broad spectrum pesticides for controlling various pests and a general concentration rate that is effective thereto. MPEP 2144.05 states, "[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).
Thus, the combined teachings of Allison, Jung, Soloway, Casida, Xu, EPA, Tamarkin, Stein and Parker and Babcock render the instant claims prima facie obvious.
Response to Arguments
Applicant's arguments, filed 12/3/2025, regarding the 103 rejections above have been fully considered. Applicant’s arguments are largely the same as previously presented in the previous Responses dated 9/9/2024 and 5/14/2025. For the reasons previously stated, Applicant’s arguments are not persuasive.
Applicant argues that a skilled artisan would not be motivated to look to Allison, Jung or Soloway when preparing a mixture of sabadilla alkaloids and a synthetic pyrethroid listed in claim 1 because said references do not teach the claimed mixture or the synergistic amount or ratios thereof. Remarks, page 4.
In response, it is respectfully submitted that the additional references discussed in the rejection (EPA, Tamarkin, Stein and Parker) teach general effective pesticidal amounts of sabadilla alkaloids and pyrethroids which are overlapping with the claimed concentrations. Further, said concentrations taught by the prior art when converted to ratios also overlap with the claimed ratio range of sabadilla alkaloids to pyrethroid. “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists” (MPEP 2144.05). “[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” (MPEP 2144.05). In addition, in the establishment of unexpected results, a few notable principles are well settled. It is applicant’s burden to explain any proffered data and establish how any results therein should be taken to be unexpected and significant, both practically and statistically. See MPEP 716.02(b). The claims must be commensurate in the scope with any evidence of unexpected results. See MPEP 716.02(d). Further, a declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art in order to be effective to rebut a prima facie case of obviousness. See MPEP 716.02(e). In the instant case, there is no comparison between the combination of the claimed sabadilla alkaloids and pyrethroids and the combination of sabadilla alkaloids with pyrethrin (Allison) or with pyrethroids of the prior art. There is no evidence showing differences between the recited pyrethroids and pyrethrin or other pyrethroids, used by Xu, Tamarkin, Stein or Parker. Further, the claims are not commensurate in scope with any evidence of unexpected results. Notably, the Examples provided in the specification only discuss the specific pests, German cockroach, house fly, bedbug and green peach aphid which is not an adequate number of species to represent the entire genus of “a pest”. Furthermore, the Examples are calculations of predicted synergism, not demonstrated synergism. Applicant has not provided any synergistic data to be able to successfully rebut the prima facie case of obviousness.
Applicant also argues that the ratio of sabadilla alkaloid to pyrethroids suggested by the prior art is not a teaching that the ratio would provide synergistic control of any pest. Applicant asserts that the cited art does not teach a skilled artisan at what concentration ratios to formulate sabadilla alkaloids and a pyrethroid to provide synergistic control of a pest. Remarks, pages 4-5.
In response, it is respectfully submitted that the rejection discusses that the prior art teaches that a) the combination of sabadilla and pyrethrins (pyrethrum marc) including concentrations thereof has a synergistic effect on thrips; b) pyrethroids are synthetic analogs of pyrethrum having the same core structure and similar pesticidal activity, but are more potent and stable; c) pyrethroids are known in the art as pyrethrum substitutes; d) a mixture of sabadilla alkaloid and pyrethroid is known in the art for controlling pests; and e) amounts of pyrethroids effective for the same purpose are known in the art. Thus, a skilled artisan would have all the necessary information to then be able to optimize via routine experimentation the amounts of each of the components and thereby the ratio of the components to arrive at the optimal formulation. MPEP 2144.05 states that it is not inventive to discover the optimum or workable ranges by routine experimentation. Furthermore, as explained above, applicant has not provided any demonstrated evidence of synergism in order to overcome the prima facie case of obviousness.
It is noted that no further arguments are presented regarding the Babcock reference.
Thus, for these reasons, Applicant’s arguments are found unpersuasive. Said rejections are maintained.
Conclusion
All claims have been rejected; no claims are allowed.
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.
Correspondence
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/CASEY S HAGOPIAN/Examiner, Art Unit 1617
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