DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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.
Receipt and consideration of Applicant’s amended claim set and Applicant’s arguments/remarks submitted on December 29, 2025 are acknowledged.
All rejections/objections not explicitly maintained in the instant office action have been withdrawn per Applicant’s claim amendments and/or persuasive arguments. Applicant’s claim amendments have necessitated new grounds of rejections set forth below.
Status of the Claims
Claims 1, 3, 4, 6-19, and 23-30 are pending and under consideration in this action. Claims 2, 5, and 20-22 are cancelled.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 December 29, 2025 has been entered.
Claim Objections
Claim 10 is objected to because of the following informalities: “N, N-dimethyloctanam ide” should be “N,N-dimethyloctanamide”. “N, N-dimethyldecanam ide” should be “N,N-dimethyldecanamide”. The space between the “1” and the comma should be removed in line 1.
Claim 11 is objected to because of the following informalities: The space between the “1” and the comma should be removed in line 1.
Claim 16 is objected to because of the following informalities: in all of the units “mg ai/m2”, the 2 should all be in superscript.
Claim 17 is objected to because of the following informalities: the space and line break between “channel” and “blocker” in lines 7-8 should be removed.
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 1, 8-11, 13, 17, 19, and 30 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.
With regards to Claim 1, line 8 recites “at least one active insecticidal ingredient”, however, line 9-10 recites that “the at least one active insecticidal ingredient” requires a combination of at the very least two different active insecticidal ingredients. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, recites the broad recitation “at least one insecticidal ingredient”, and the claim also recites that two insecticides are required which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Furthermore, line 12 of claim 1 recites “wherein the active insecticidal ingredient”. As the claim earlier recites “at least one insecticidal ingredient”, it is unclear if the limitations for “the active insecticidal ingredient” in line 12 is for just one of the “at least one active insecticidal ingredient” or all of the “at least one insecticidal ingredient”.
With regards to Claim 8, the claim recites the limitation "the at least one carrier" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim because claim 1, which claim 8 depends upon, recites “a carrier” not “at least one carrier”.
With regards to Claim 9, the claim recites the limitation "the at least one carrier" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim because claim 1, which claim 9 depends upon, recites “a carrier” not “at least one carrier”.
With regards to Claim 10, lines 1-2 recites “the solvent”. However, claim 1, which claim 10 depends upon, recites “at least one solvent”. Thus, it is unclear if “the solvent” is referring to just one of the “at least one solvent” or if it is referring to “at least one solvent” as a whole.
With regards to Claim 11, lines 1-2 recites “the surfactant”. However, claim 1, which claim 11 depends upon, recites “at least one surfactant”. Thus, it is unclear if “the solvent” is referring to just one of the “at least one surfactant” or if it is referring to “at least one surfactant” as a whole.
With regards to Claim 13, the limitation “wherein the composition comprises a dilution of the emulsifiable concentrate in one or more solvents” renders the claim indefinite because it is unclear if the limitation is intended to mean that the “dilution of the emulsifiable concentrate in one or more solvents” is a further component of the insecticidal composition recited in claim 1, or if the limitation is intended to mean that the emulsifiable concentrate component recited in claim 1 is in a diluted form.
With regards to Claim 17, line 6 recites “at least one active insecticidal ingredient”, however, line 6-8 recites that “the at least one active insecticidal ingredient” requires a combination of at the very least two different active insecticidal ingredients. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, recites the broad recitation “at least one insecticidal ingredient”, and the claim also recites that two insecticides are required which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Furthermore, line 11 of claim 1 recites “wherein the active insecticidal ingredient”. As the claim earlier recites “at least one insecticidal ingredient”, it is unclear if the limitations for “the active insecticidal ingredient” in line 11 is for just one of the “at least one active insecticidal ingredient” or all of the “at least one insecticidal ingredient”.
With regards to Claim 19, the claim recites the limitation "the at least one carrier" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim because claim 1, which claim 19 depends upon, recites “a carrier” not “at least one carrier”.
With regards to Claim 30, line 6 recites “at least one active insecticidal ingredient”, however, line 7-8 recites that “the at least one active insecticidal ingredient” requires a combination of at the very least two different active insecticidal ingredients. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, recites the broad recitation “at least one insecticidal ingredient”, and the claim also recites that two insecticides are required which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Furthermore, line 9 of claim 1 recites “wherein the active insecticidal ingredient”. As the claim earlier recites “at least one insecticidal ingredient”, it is unclear if the limitations for “the active insecticidal ingredient” in line 9 is for just one of the “at least one active insecticidal ingredient” or all of the “at least one insecticidal ingredient”.
Claim Rejections - 35 USC § 103
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, 4, 6-8, 10-13, 17, 18, 24-26, 29, and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Bristow (US 2016/0198703 A1; published Jul. 14, 2016).
With regards to Claims 1, 3, 4, 6, 8, 11, 12, 26, and 30, Bristow discloses an aqueous suspoemulsion, which is a combination of an emulsifiable concentrate (EC) of one component (active ingredient dissolved in oil) and a suspension concentrate (SC) of another component (suspension of another active ingredient in water). When the two (i.e., EC and SC) are mixed, water used as the continuous phase in the emulsion, carrying oil droplets used as the continuous phase in the emulsion, carrying oil droplets used as the dispersed phase containing one active ingredient, is intermingled with suspended particles of another active ingredient (para.0034).
As the EC and SC are combined, it would read on an emulsifiable concentrate (EC) comprising all of the components recited for the EC and SC. The transitional phrase “comprising” is open-ended and does not exclude additional, unrecited elements or method steps. Note: MPEP 2111.03.
The aqueous suspoemulsion comprises: a dispersed oil phase component (a), comprising: (i) lambda-cyhalothrin (sodium channel blocker) as the first active ingredient; (ii) at least one solvent having lambda-cyhalothrin dissolved therein; a continuous water phase component (b), comprising: (i) imidacloprid (nicotinic receptor agonist) as the second active ingredient; and (ii) water having imidacloprid suspended therein; and at least one additive. Among the suitable additives include an emulsifier, a dispersant, and an inert filler (para.0035-0039).
The aqueous suspoemulsion further includes a dispersant, such as propylene oxide-ethylene oxide block copolymer (reading on surfactant) (Bristow claims 4 and 7).
As discussed above, among the suitable additives include an inert filler, such as inorganic particles, such as silicates, and organic substances, such as kaolin (a clay), silica, finely divided silica, silica gels, and talc (reading on carrier) (para.0056, 0060; Bristow claim 20).
Inert fillers (reading on carrier) as discussed above may further be included in the suspoemulsion (para.0021, 0060). As the inert fillers disclosed by Bristow are inorganic particles or solid carriers overlapping with those recited in the instant claims, the particles will, absent evidence to the contrary, be dispersed and suspended within the suspoemulsion. As discussed above, the imidacloprid is present as micronized particles, and as the fillers, which overlap with those explicitly claimed would be intermingled with the active ingredients which are explicitly claimed, absent evidence to the contrary, the intermingling would also result in active ingredients being adsorbed on the carrier.
The formulations are used for controlling pests at a locus, in particular insects, which comprise applying to the locus an effective amount of the formulation (para.0084-0085).
With regards to Claim 7, the weight ratio of lambda-cyhalothrin and imidacloprid in the composition is preferably from 60:1 to 1:10, 40:1 to 1:40, or 15:1 to 1:15, more preferably 10:1 to 1:10, 5:1 to 1:5 (para.0067).
With regards to Claim 10, among the suitable solvents for use in component (a) include N-octyl pyrrolidone (1-octyl-2-pyrrolidone) (para.0050).
With regards to Claim 17, preparation of an aqueous suspoemulsion comprises: (Step 1) preparing lambda-cyhalothrin emulsifiable concentrate (EC) phase by mixing the active ingredient with a suitable solvent; (Step 2) preparing a dispersion of imidacloprid in a continuous water phase by mixing the active ingredient, a dispersant, and a required amount of water; and comprising the EC phase in Step 1 with the water phase Step 2 (para.0040-0043).
Bristow discloses that in preparing a dispersion of imidacloprid in the continuous water phase, the active ingredient, a dispersant, a required amount of water, and optionally other additives are mixed in a horizontal agitating bead mill with the process parameters maintained at median particle size D50 not to exceed 5 microns and D90 not to exceed 6 microns (para.0077).
Bristow discloses that when the two (i.e., EC and SC) are mixed, water used as the continuous phase in the emulsion, carrying oil droplets used as the continuous phase in the emulsion, carrying oil droplets used as the dispersed phase containing one active ingredient (lambda-cyhalothrin), is intermingled with suspended particles of another active ingredient (imidacloprid) (para.0034).
Inert fillers (reading on carrier) as discussed above may further be included in the suspoemulsion (para.0021, 0060). As the inert fillers disclosed by Bristow are inorganic particles or solid carriers overlapping with those recited in the instant claims, the particles will be dispersed and suspended within suspoemulsion. As discussed above, the imidacloprid is present as micronized particles, and as the fillers, which overlap with those explicitly claimed would be intermingled with the active ingredients which are explicitly claimed, absent evidence to the contrary, the intermingling would also result in active ingredients being adsorbed on the carrier.
With regards to Claims 13, 18, and 24-26, the suspoemulsion may be diluted with water to convert the suspoemulsion into a homogeneous spray fluid (para.0082).
With regards to Claim 29, Bristow discloses that the content of the individual components in the suspoemulsion can be varied within a relatively wide range (para.0062). The concentrations of the components may typically be present as follows: the lambda-cyhalothrin may be present in an amount between 1% to 40% by weight, preferably between 5% and 20% by weight; the imidacloprid may be present in amount between 5% and 60% by weight, preferably between 10% and 40% by weight; and the solvent may be present in an amount between 1% and 40% by weight, preferably between 5% and 20% by weight; the water may be present in an amount between 25% and 80% by weight; and the dispersant may be present in an amount between 1% and 10% by weight, preferably between 1% and 5% by weight (para.0062-0066). The remainder would be the further additives (e.g., inert fillers) that Bristow would allow in the composition.
With regards to the amount of each component, which in turn would determine the ratio of active insecticidal ingredients and solvent to carrier, it would have been obvious to one of ordinary skill in the art before the effective filing date of the instant invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. In particular, one of ordinary skill in the art would have found it prima facie obvious and would have been motivated to start with Bristow’s disclosed ranges of each active ingredient, solvent, and additive (e.g., inert filler), and engage in routine experimentation to determine the optimal or workable amount within the disclosed ranges based on art recognized factors, such as the extent of insecticidal activity needed, and providing optimal or the desired formulation characteristics. Where 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, 105 USPQ 233 (CCPA 1955).
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention, because the teachings of the prior art reference is fairly suggestive of the claimed invention.
Claims 9, 19, and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Bristow (US 2016/0198703 A1; published Jul. 14, 2016) as applied to Claims 1, 3, 4, 6-8, 10-13, 17, 18, 24-26, 29, and 30 set forth above, further in view of Guerassimoff (US 2003/0099680 A1; published May 29, 2003).
The teachings of Bristow as they apply to Claims 1, 3, 4, 6-8, 10-13, 17, 18, 24-26, 29, and 30 are set forth above and incorporated herein.
Bristow does not appear to explicitly disclose wherein the carrier comprises amorphous silica (Claims 9, 28) or wherein the carrier is as recited in Claim 19. Guerassimoff is relied upon for this disclosure. The teachings of Guerassimoff are set forth herein below.
Guerassimoff discloses a pesticide composition containing a suspension of finely milled amorphous silica in water. The composition can be sprayed onto a pest and/or the pest habitat to control the pest (abstract). Guerassimoff discloses that the amorphous silica is finely ground and it is found that this provides significant advantages to the versatility and to the effectiveness of the pesticide composition (para.0006).
The composition may include one or more active ingredients, such as insecticides (par.0030).
Guerassimoff discloses that the fine nature of the amorphous silica seems to provide an unexpected benefit in controlling pests. Experimentation indicates that the amorphous silica works by physical abrasion against the body of the pest (thus reading on an abrasive). By fine milling the amorphous silica, the surface area is enormously increased, as is the area of sharp edges of the amorphous silica etc. The size of the amorphous silica ensure that particles of the silica find their way into the leg joints and other mobile parts of the pests, and will abrade these parts to ultimately injure or kill the pest. The composition is found to be effective against insects having harder bodies, but also against softer body pests, such as flies, larvae, worms, and the like. The composition has also effective against developing fungal organisms and the like (para.0044). Furthermore, the finely milled silica has a second beneficial effect on plants in that it is in a “plant available” form, and thus, provides a beneficial effect on the plant when spray on plants to control pests, or is sprayed around the plant root zone (paras.0045).
With regards to Claims 9, 19, and 28, as discussed above, Bristow discloses that their pesticidal formulation may include inert fillers, such as inorganic particles, silica, or finely divided silica. One of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant invention to combine the teachings of Bristow with the teachings of Guerassimoff and use Guerassimoff’s finely milled amorphous silica as the inert filler in Bristow’s pesticidal formulation. One of ordinary skill in the art would have been motivated to do so in order to obtain the benefits discussed above by Guerassimoff, in particular providing another mechanism for providing insecticidal activity (e.g., abrasion), additionally providing antifungal activity, and providing a beneficial effect on plants when sprayed on plants for insect control. One of ordinary skill in the art would have had a reasonable expectation of success in doing so as Bristow discloses that silica and particulate material are suitable for inclusion in their formulation, which may be diluted to form a spray, and Guerassimoff discloses that their finely milled amorphous silica are suitable for use with insecticides and suitable for suspension in water to be sprayed.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention, because the combined teachings of the prior art references is fairly suggestive of the claimed invention.
Claim 27 are rejected under 35 U.S.C. 103 as being unpatentable over Bristow (US 2016/0198703 A1; published Jul. 14, 2016) as applied to Claims 1, 3, 4, 6-8, 10-13, 17, 18, 24-26, 29, and 30 set forth above, further in view of Preslar et al. (Preslar) (US 2019/0037839 A1; published Feb. 7, 2019).
The teachings of Bristow as they apply to Claims 1, 3, 4, 6-8, 10-13, 17, 18, 24-26, 29, and 30 are set forth above and incorporated herein.
Bristow does not appear to explicitly disclose wherein the carrier comprises microporous silica. Preslar is relied upon for this disclosure. The teachings of Preslar are set forth herein below.
Preslar discloses compositions for controlled release of active ingredients. The compositions are useful for applications in agriculture and pest control (abstract). The composition comprises a delivery material, which may be a silicate material, also referred to as a silica based material (para.0075). In some embodiments, the delivery material comprises one or more microporous silica (para.0075).
Preslar discloses that it is contemplated that the delivery materials combine chemical interactions between the delivery material and active ingredients with an adsorption/desorption equilibrium at the material surface. Characteristics of the delivery material can be modified to provide deliberately accelerated or deliberately decelerated release of the active ingredient as compared to the release rate of an active ingredient from a matrix comprising unmodified delivery material (para.0073).
With regards to Claim 27, as discussed above, Bristow discloses that their pesticidal formulation may include inert fillers, such as inorganic particles, such as silicates, and silica or finely divided silica. One of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant invention to combine the teachings of Bristow and Preslar and use Preslar’s microporous silica as the inert filler in Bristow’s pesticidal formulation. One of ordinary skill in the art would have been motivated with a reasonable expectation of success in doing so as Bristow explicitly discloses that silicate particles may be used in their formulation, and Preslar discloses that microporous silica is a type of silicate particle material known to be used in pesticidal formulations. Furthermore, Preslar discloses that their material would allow for the advantage of providing control of the release rate of the active ingredient in the formulation based on the adsorption/desorption equilibrium at the material surface.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention, because the combined teachings of the prior art references is fairly suggestive of the claimed invention.
Claims 14-16 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Bristow (US 2016/0198703 A1; published Jul. 14, 2016) as applied to Claims 1, 3, 4, 6-8, 10-13, 17, 18, 24-26, 29, and 30 set forth above, further in view of Sikuljak et al. (Sikuljak) (US 2018/0139960 A1; published May 24, 2018).
The teachings of Bristow as they apply to Claims 1, 3, 4, 6-8, 10-13, 17, 18, 24-26, 29, and 30 are set forth above and incorporated herein. Additional relevant teachings of Bristow are set forth herein below.
Bristow further discloses a method for controlling pests at a locus, in particular insects, which comprises applying to the locus an effective amount of the formulation (par.0084-0085). The formulations may be applied by spraying (para.0082).
The application rate can be varied within a relatively wide range, and the concentration will depend on amounts of the active ingredient in the composition and intended purpose, which can be determined by a skilled person in this field (para.0083).
Bristow discloses that the advantage of their formulations is that commercially viable concentrations of stable formulations of the pesticide may be used without any substantial or detrimental formation of crystals (para.0087). The suspoemulsion formulations have further advantages of being non-flammable, low dermal toxicity, and low skin irritancy (para.0089). Finally, the suspoemulsion formulations can be considered ecotoxicologically safe, since they are prepared from safe and substantially inert ingredients (par.0090).
Bristow does not appear to explicitly disclose (i) the application to an insect, eggs, a surface, or an object (Claim 14); (ii) wherein the insect is a bed bug (Claim 15); (iii) the application rate as recited in Claim 16; or (iv) wherein the sodium channel blocker is beta cyfluthrin (Claim 23). Sikuljak is relied upon for these disclosures. The teachings of Sikuljak are set forth herein below.
Sikuljak discloses pesticidal formulations for the control of non-crop pests, such as bed bugs. Non-crop applications include in the household or for pest management in urban facilities and rural areas, e.g., in and around farm premises and animal housing, storage, or the like (para.0002-0003, 0104, 0107, 0210, 0222).
Sikuljak discloses that their compounds may be combined with additional insecticides, including lambda-cyhalothrin, beta-cyfluthrin, and imidacloprid (Sikuljak claim 5).
The composition to control such non-crop pests may be applied as a spray solution on a variety of surfaces to be protected from insecticidal attack (para.0441). The compositions may be applied to their habitat, breeding grounds, or their locus (para.0004, 0087, 0440; Sikuljak claims 1 and 22).
The application rate of the compositions may vary between 0.0001 and 1000 mg/m2 (para.0127). In the case of soil treatment or of application to the pest dwelling place or nest, the quantity of active ingredient ranges from 0.0001 to 500 g/100 m2 (para.0448).
With regards to Claim 14, as discussed above, Bristow discloses that their formulations are used for controlling pests at a locus, in particular insects, which comprise applying to the locus an effective amount of the formulation. One of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant invention to combine the teachings of Bristow and Sikuljak and apply Bristow’s composition to surfaces to be protected from insecticidal attack. One of ordinary skill in the art would have been motivated with a reasonable expectation of success in doing so as Sikuljak discloses that a locus known in the art to apply insecticidal formulations comprising insecticides such as those used in Bristow (lambda-cyhalothrin and imidacloprid) includes surfaces to be protected from insecticidal attack.
With regards to Claims 15 and 16, one of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant of the instant invention to combine the teachings of Bristow and Sikuljak and apply Bristow’s formulation to control bed bugs at an application rate disclosed by Sikuljak. One of ordinary skill in the art would have been motivated with a reasonable expectation of success in doing so Sikuljak discloses that Bristow’s insecticides, lambda-cyhalothrin and imidacloprid are known to be used in controlling bed bugs and Sikuljak’s application rate is known in the art to be suitable for insecticide application in non-crop settings, such as in the household. Furthermore, Bristow provides a formulation type suitable for household use as it is non-flammable, low dermal toxicity, lot skin irritancy, and is considered ecotoxicologically safe, since the yare prepared from safe and substantially inert ingredients.
Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the instant invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. In particular, one of ordinary skill in the art would have found it prima facie obvious and would have been motivated to use Sikuljak’s art recognized application rate and engage in routine experimentation to determine optimal or workable ranges within the art disclosed range based on art recognized parameters such as the extent of infestation or the amount of insect control needed in the particular area for application. Where 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, 105 USPQ 233 (CCPA 1955).
With regards to Claim 23, as discussed above, Bristow’s formulation comprises lambda-cyhalothrin and imidacloprid as the active insecticidal ingredients. Sikuljak discloses that beta-cyfluthrin, like lambda-cyhalothrin is a pyrethroid insecticide (para.0301). One of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant invention to include beta-cyfluthrin either in lieu of, or in addition to, Bristow’s lambda-cyhalothrin when forming Bristow’s insecticidal formulation comprising lambda-cyhalothrin and imidacloprid. As a general principle it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose, the idea of combining them flows logically from their having been individually taught in the prior art. See In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) MPEP 2144.06. In the present case, beta-cyfluthrin and lambda-cyhalothrin are both disclosed as pyrethroid insecticides and being combined to be used for the same purpose.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention, because the combined teachings of the prior art references is fairly suggestive of the claimed invention.
Conclusion
Claims 1, 3, 4, 6-19, and 23-30 are rejected. No claims are allowed.
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/MONICA A SHIN/Primary Examiner, Art Unit 1616
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