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 .
Status of Application
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/18/2025 has been entered.
Receipt of Applicants’ Arguments, Remarks and amended claims filed on 12/18/2025 are acknowledged.
Claims 1-21 are pending.
Claims 1, 2, 5, and 17 have been amended.
Claim 6 is cancelled.
Claims 1-5 and 7-21 are pending and are included in the prosecution.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 12/18/2025, is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements have been considered by the examiner. Please see the attached PTO-1449
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.
Claim 7 is 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.
Claim 7 recites the limitation "thiamine" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 7 depends from claim 1, wherein “thiamine” is deleted. Appropriate correction is required.
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 1-5 and 7-21 are rejected under 35 U.S.C. 103 as being unpatentable over Mazomenos (US 5650160) in view of Water soluble biocompatible vesicles based on polysaccharides and oligosaccharides inclusion complexes for carotenoid delivery (here in after the reference is referred as Polyakov), Cannesan (WO 2012/175639 A1), Adult Frass Provides a Pheromone Signature for Drosophila Feeding and Aggregation (hereinafter the reference is referred as Keesey), Wäckers (WO 2013/156492 A2), Sato (US 9,485,987 B2) both references cited in IDS filed 01/11/2021, Shi (CN 106879568 A), Insecticidal and Oviposition Deterrent Effects of Essential Oils and their Constituents Against the Invasive Pest Drosophila Suzukii (Matsumura) (Diptera: Drosophilidae) (hereinafter the article is referred as Erland), The Drosophila Melanogaster Gut Microbiota Provisions Thiamine to its Host (hereinafter the article is referred as Sannino), Zhang (US 2017/0251664 A1 cited in IDS filed 01/11/2021, Goldblum (US 20150250166 A1) Disease and Insect Management in the Home Orchard (hereinafter the reference is referred as NC State), and further in view of Step by Step: How to Apply a Soil Drench to Trees (herein after the reference is referred Soil Drench).
Mazomenos teaches process for attracting male olive pests comprising an appropriate amount of about 10 to about 40 mg: an inclusion complex of a cyclodextrin and of at least one of the following compounds: a linear chain of 10 to 20 carbon atoms, substituted or not, saturated or unsaturated. under the acetate or aldehyde or alcohol form, provided that such chain is different from ethyl dodecanoate (abstract) and techniques used to control olive fruit pests (column 1, lines 47-48).
Regarding claims 1, 9 and 10, Mazomenos teaches inclusion complexes of cyclodextrins (CDs), to a process for their preparation and to their use, in slow release formulation (column 1, lines 5-9). Furthermore, Mazomenos discloses CDs (a-CD, β-CD, y-CD), act as hosts for a great variety of chemicals (guests) to form inclusion complexes, and the guest molecules are entrapped within the cavity at least partly (column 1, lines 55-64), and that use of CDs [including beta-cyclodextrin (β-CD)] to form inclusion complexes with volatile insect attractants have been known to be effective (column 3, lines 33-53). Additionally, Mazomenos discloses cyclodextrin (β-CD) is present in an amount sufficient to encapsulate and control release of the attractant, and relative proportions are described functionality (e.g., excess CD relative to guest molecule (column 5, lines 29 to column 9, lines 1-33). The specific β-CD range from 4.9 wt% to 14.9 wt% is a result-effective variable, and although Mazomenos fails to expressly disclose a cyclodextrin concentration of 4.9 wt% to 14.9 wt%, Mazomenos teaches the use of cyclodextrin in an amount sufficient to form inclusion complexes and control release of volatile insect attractants, and thus the amount of cyclodextrin constitutes a result-effective variable, and selecting an appropriate concentration within a predictable range to achieve the desired encapsulation and release characteristics would have been a matter of routine optimization to a PHOSITA. A PHOSITA would recognize that cyclodextrin is commonly used in solid or semi-solid formulations and that the recited ranges does not depart from conventional formulation practice and that no new mechanism is resulted due to these ranges, thus discovering an optimum value of a result-effective variable is prima facie obvious, and β-CD loading in an insect attractant/lure composition is considered result-effective. MPEP 2144.05 II. Routine Optimization
A. Optimization Within Prior Art Conditions or Through Routine Experimentation
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) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.").
Examiner did not find in disclosure or discussions in specification of the claimed concentration ranges to be critical, nor any unexpected result associated with the claimed β-CD ranges.
Regarding claims 15, 16, 17 and 18, Mazomenos teaches the cyclodextrin pheromone complexes can be develop per in a flowable form in order to be applied by ground or air using mechanical methods (column 5, lines 37-48). Moreover, Mazomenos teaches solution and suspension formulations (column 7, lines 13 and 18).
Mazomenos fails to specifically teach arabinogalactan, a cherry-derived component, dried Drosophila suzukii powder, and a humectant.
Polyakov teaches existing data on preparation, methods, analysis, and chemical reactivity of carotenoids in inclusion complexes with cyclodextrins, arabinogalactan and glycyrrhizin (abstract).
Regarding claims 1, 2, 10, and 15, Polyakov teaches arabinogalactan is from larch tree (page 209, right column, ¶ 2 and Fig. 3.), cyclodextrin inclusion complexes formation in aqueous solution comprising β-CD loading (page 211, left column, ¶ 1-5), arabinogalactan inclusion complexes (page 215, right column, ¶ 3) and complexes with cyclodextrin shows enhance storage stability and solubility in water and the addition of arabinogalactan form more of a stable complexes and demonstrated unique water soluble compositions which provide enhanced stability useful for many applications (page 217, right column, ¶ conclusion). Therefore, Polyakov establishes cyclodextrins and arabinogalactan in the same formulation framework, and that arabinogalactan is a known polysaccharide carrier, used to form water-soluble complexes, amount selected to achieve solubility, stability and delivery, and functions as a matrix/excipient and/or not as an active ingredient. However, Polyakov does not expressly disclose arabinogalactan in an amount range of 10 wt% to 60 wt%, Polyakov teaches arabinogalactan as a known polysaccharide carrier used in amounts sufficient to function as a delivery matrix and the concentration of arabinogalactan constitutes a result-effective variable, and selecting an appropriate amount within a conventional range to achieve desired formulation properties would have been a matter of routine optimization to a PHOSITA. Examiner did not find in disclosure or discussions in specification of the claimed concentration ranges to be critical, nor any unexpected result associated with the claimed arabinogalactan ranges of 10 wt% to 60 wt%. However, the claimed ranges of arabinogalactan used in a plant antiparasitic composition are commonly overlapped as evidenced by Cannesan (WO 2012/175639 A1), page 12 to 13.
Cannesan teaches the motivation for use of at least one arabinogalactan protein as a plant antiparasitic agent (page 2, lines 17 to page 3 line 9., and the term also encompasses a class of products which prevents parasitic infections in plants, and therefore are highly useful for controlling, alleviating and preventing the negative effects of a parasite (page 3, line 20 to page 4, line 1-2). Cannesan further discloses arabinogalactan are highly adapted for selectively inducing chemotaxis, zoospore encystment and inhibiting cyst germination, interfere in the normal process of infection, disrupt the natural and early interaction between the host and the parasite, thus preventing the host to be infected, and thus arabinogalactan application represents a highly promising strategy for preventing infection of plant, especially since it avoids the use of any toxic chemical compound (page 8, lines 23-24 to page 9, lines 1-3). Cannesan also discloses that arabinogalactan proteins have distinct compositional features depending on the species in which they are found (page 5, lines 20-21), this suggests arabinogalactan from for example Larch tree can have distinct features (page 11, lines 17-21). Therefore, Cannesan establishes obviousness to use arabinogalactan in plants to prevent infections.
Regarding claim 14, Cannesan teaches composition are free of toxic chemicals (fungicides) (page 2, lines 6-12) and arabinogalactan application are highly promising strategy for preventing infection in plants, especially since it avoids the use of any toxic chemical compound (page 9 lines 1-5). Therefore, Cannesan suggests composition with use of arabinogalactan application are free of toxic chemical such as pesticides.
Zhang teaches methods of attracting Drosophila suzukii comprising treating an object or area with and effective amount of a composition containing volatile compounds ethyl octanoate, acetic acid, ethyl acetate….etc., (¶ 0006). It is noted that volatile compounds are present in cherries as evidenced by the article “Volatile compounds emitted by sweet cherries (Prunus avium Cv. Bing) during fruit development and ripening”.
Keesey teaches that adult Drosophila melanogaster locate food resources by using distinct olfactory cues that often are associated with the fermentation of fruit. However, in addition to being an odorous food source and providing a possible site for oviposition, fermenting fruit also provides a physical substrate upon which flies can attract and court a potential mate. Drosophila adults are able to recruit additional flies to a food source by covering the exposed surface area with fecal spots, and that this recruitment is mediated via olfactory receptors (Ors). Analyses of the deposited frass material demonstrates that frass contains several previously studied pheromone components, such as methyl laurate (ML), methyl myristate (MM), methyl palmitate (MP), and 11-cis-vaccenyl acetate (cVA), in addition to several cuticular hydrocarbons (CHCs) that are known to be behaviorally active. Moreover, Keesey discloses the frass deposited by the fly onto the fruit provides both pheromone and CHC cues that lead to increased feeding and aggregation in Drosophila (abstract). NOTABLY, Keesey discloses examination of Drosophila frass also provides novel approaches to the studies of economically important species within this genus, such as D. suzukii, where the loss of 11-cis-vaccenyl acetate (cVA) might have been replaced by another behaviorally relevant male-generated pheromone component that could be more easily identified from fecal studies. It also is likely that certain chemical components of D. suzukii frass could provide species-specific attraction and aggregation cues that in turn may benefit current IPM strategies (page 746, left column, ¶ 2), and one of the more economically important Drosophila species, D. suzukii, would be a prime candidate for a more extensive study of frass in regard to attraction, avoidance or oviposition, as any attractive or deterrent chemistry from frass may aid in IPM strategies towards the control of this pest insect (page 746, right column, last ¶).
Regarding claim 11, Keesey teaches that frass is a strong attractant across several tested behavioral paradigms for Drosophila attraction and aggregation, and that both male and female frass is attractive (page 743, left column, ¶ 1) and while all examined species and their frass contain pheromone components such as ML, MM, and MP, many species and their corresponding frass appears to be deficient in 11-cis-vaccenyl acetate (cVA), further confirming that this compound and other male-produced compounds may be more indicative of species differences than other behaviorally relevant odors. For example, we were able only to identify a minuscule amount of cVA that was generated by D. suzukii or D. virilis, but other species such as D. biarmipes appeared to contain larger amounts of this pheromone component in adult male body washes as well as in collected male frass (page 744, right column, ¶ 1). Therefore, it would have been obvious to a PHOSITA to incorporate a dried Drosophila suzukii insect powder (frass, insect bodies, cuticles) component into an insect attractant composition to specifically target attraction of D. suzukii.
Sannino teaches a composition of microbiota in supplying sufficient dietary thiamine (vitamin B1) to support Drosophila melanogaster larvae development (abstract). Notably, Sannino disclose Drosophila suzukii relies on its microbiota, which it vectors to the fruit, for the supply of nutrients such as thiamine, and thus targeting the microbiota may be an effective approach for pest management (page 10, last 8 lines of ¶ 2), and when dietary thiamine was provided, the microbiota enhanced both development in speed and survivorship, and the microbiota exerted a greater influence on the eggs laid by older Drosophila suzukii females.
Regarding claim 7, Sannino teaches thiamine is essential for offspring development and survival (page 5, ¶ 2), and 0.2-µg/ml thiamine diet allowed for significantly more axenic adults Drosophila suzukii flies to develop than the 1-µg/ml thiamine diet, suggesting that there may be an optimal dietary thiamine concentration to support development of axenic flies (page 6, last ¶).
Zhang teaches methods of attracting Drosophila suzukii involving treating an object or area with Drosophila suzukii attracting effective amount of a composition containing acetoin and at least on component selected from ethyl octanoate, acetic acid, ethyl acetate, phenethyl alcohol, or mixtures thereof (abstract).
Regarding claim 17, Zhang teaches methods of attracting Drosophila suzukii involving treating an object or area with Drosophila suzukii attracting effective amount of a composition (¶ 0002).
Regarding claim 21, Zhang teaches the amount of the composition for attracting Drosophila suzukii used will be at least an effective amount (i.e., 1 mg or more), and the term "effective amount," as used herein, means the minimum amount of the composition needed to attract Drosophila suzukii to a treated area or object or locus when compared to the same area or object or locus which is untreated and the precise amount needed will vary in accordance with the particular composition used; the type of area or object to be treated; the number of days of attractiveness needed; and the environment in which the area or object or locus is located, wherein the precise amount of the composition can easily be determined by one skilled in the art given the teaching of this application (¶ 0023). For example, one skilled in the art could follow the procedures utilized; the composition would be statistically significant in comparison to a control (e.g., water); Generally, the concentrations of synthetic chemicals discussed herein on polypropylene flex tube or plastic bag would range from about 10 mg to about 250 mg (e.g., 10 to 250 mg), monitoring traps would generally use about 50 mg while attract and kill may use about 250 mg (e.g., 250 mg), and release rates could generally be about 0.05 to about 30 mg (e.g., 0.05 to 30 mg) per tube/bag per day (¶ 0023), therefore, there is not enough parameters in the instant claim to properly determine percentage of egg laying in field oviposition.
Wäckers teaches a composition for attracting, monitoring and controlling Drosophila suzukii comprising melon-based or melon-fruit extract and disclose that the Drosophila suzukii pest attacks fresh, ripe fruit by laying eggs under the soft skin and particularly infest cherries, blueberries, grapes, raspberries for example (page 1, lines 11-15), and the attractiveness of the melon-based compositions is surprising, given that melon is not considered a particularly preferred host plant for Drosophila suzukii (page 1, lines 31-35). The composition comprises one or more preservatives, particularly food grade preservatives (page 15 line 5-7), lauric acid and myristic acid in concentration between 0.1 and 5% (w/w) (page 16, lines 24-30), in aqueous liquid solution composition (page 17, lines 5-8) and/or dried powdered (page 7, line 32-33), humectants of agar, xanthan gum, carrageenan, glycerol, sorbitol and maltitol for example (page 17, lines 22-24), beta-cyclodextrin (page 17, lines 34), wherein the composition attracts males and females Drosophila suzukii (page 19, lines 7-13.
Regarding claims 1 and 8, as noted above, Wäckers teaches Melon-based composition to attract Drosophila suzukii comprising humectants. A person having ordinary skill in the art (PHOSITA) would be able to select a different type of fruit as the alternative, such as cherry-based fruit or cherry-extract because Wäckers teach or suggests Drosophila suzukii pest attacks the cherry ripped fruits and lay eggs under the soft skin.
Regarding claims 9, 10, and 12, as noted above, Wäckers teaches beta-cyclodextrin, carrageenan, and lauric acid.
Regarding claim 13, as noted above, Wäckers teaches attracting males and females Drosophila suzukii.
Regarding claims 15 and 16, as noted above, Wäckers teaches aqueous composition and/or dried powdered.
Wäckers fails to teach cherry-derived component and arabinogalactan.
Sato teaches a composition for controlling various types of insects (column 6, lines 50-55) and the insects are not limited to a particular type (column 6, lines 54-55) and include in the Drosophilidae family (column 7, lines 31) wherein the composition comprises arabinogalactan uses as the organic thickening agent (column 12, lines 27-30).
Regarding claims 1, 2, and 10 as noted above, Sato teaches the component arabinogalactan is taught in the composition and A person having ordinary skill in the art (PHOSITA) would be able to manipulate the amounts of arabinogalactan in order to formulate a composition with a specific viscosity.
Shi teaches a method and composition for trapping and collecting Drosophila melanogaster fruit flies comprising cherry-derived component (abstract and page 1, ¶s 1-2) wherein the cherry is derived from cherry fruit, manually or mechanically crushed or broken into plastic buckets and other sealable containers to yield cherry fruit juice (page 1, S1 ¶).
Regarding claims 1, 3, and 4, as noted above, Shi teaches cherry-derived component in the composition.
Regarding claim 5, Shi teaches cherry-fruits were collected in and out of a garden, crushed in a manual or mechanical way, and placed containers and content of soluble solids of fruit juice is determined, and if the sugar content is less than 18%, the sugar content is supplemented to 18% by addition of sucrose (abstract, page 1, S1 ¶). Therefore, the cherry-derived component is taught and overlaps with instant range in the amount between 0.1 wt% and about 99 wt%.
Regarding claim 14, Shi teaches the composition of trapping Drosophila fruit flies comprising cherry-derived component and non-polluting pesticides (page 1, ¶ 2).
Regarding claim 20, Shi teaches the cherry-derived component is from a cherry plantation (page 3, 2nd ¶)
Erland teaches a composition for control of Drosophila suzukii (Matsumura) or spotted wing drosophila (SWD) affecting cherry fruit plants (Prunus avium L.), blueberry (Vaccinium spp.), raspberry (Rubus spp.) (page 1, introduction ¶) comprising a composition directed to susceptibility of Drosophila suzukii adults to the volatile compounds of essential oils (page 21, ¶ 2.3 Fumigation toxicity assays) and in Table 3 (page 23) exemplify Palmitic acid, Lauric acid, Myristic acid and Palmitoleic acid in the composition. Furthermore, Erland discloses Drosophila suzukii adults were collected form cherry (Prunus cerasus L.) (page 21, Experimental Methods ¶), wherein the use of essential oils to prevent oviposition of Drosophila suzukii in blueberries was determined (page 21, ¶ 2.2).
Regarding claim 19, as noted above, Erland teaches control of Drosophila suzukii from plants of blueberry (Vaccinium spp.), Rubus spp., and raspberry (Prunus spp).
Goldblum teaches pest control composition (abstract) affecting Drosophila cells (column 36, line 15) comprising a viscosity modulating agent arabinogalactan, a carrageenan, cellulosic polymer, and starch (column 7, lines 22-35).
Regarding claims 1- 2, Goldblum teaches pest control composition comprising collagen and gelatin (¶ 0032), a viscosity modulating agent arabinogalactan, carrageenan and the viscosity modulating agent can be present in the composition in an amount of at about 0.05% to at or about 25% by weight of the composition, therefore overlaps with instant claim arabinogalactan in the amount between about 0.1 wt% and about 99 wt%.
NC State disclose stone fruits (Prunus species, e.g., peaches, nectarines, and plums) generally require more care than pome fruits (e.g. Apples and pears), and in general, tree fruits requiring most care are cherry and plums (page 2, ¶ 1). Notably, NC State disclose cherries and plums are susceptible to attack by many of the same insect pests for peaches, including the insect peachtree borer. Furthermore, the peachtree borer can lay eggs on the tree trunks and the larvae bore into the base of the tree near the soil line, a pyrethroid insecticide can be applied to the trunk of the tree (from the first scaffold limb to the ground) (page 5, Peachtree borer ¶).
Regarding claim 18, NC State disclose the peachtree bore insect can lay eggs on cherry and plum tree trunks and the larvae can bore into the base of the tree near soil line (page 5, Peachtree borer ¶), therefore it is obvious to apply or treat an area targeting the base of a plant with the composition targeting non-fruiting part of the plant. An article of interest, Soil Drench teaches step by step of how to apply a control product directly to the base of a plant (page 1, ¶ 1).
Regarding the amended claims 1 and 17, as noted in the rejections above, the combined teachings of the cited references contains the recited components of cherry-derived ingredient, arabinogalactan, thiamine and a humectant. Therefore the functional properties of these components to attract, lure or bait the Drosophila suzukii when combined in a composition would reasonably be predicted as in the claims. A person having ordinary skill in the art (PHOSITA) would be able to manipulate the concentration and percentages in order to arrive to the desired viscosity or optimize one or more elements in the composition in order to provide a slow release formulation.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to formulate a composition for attracting Drosophila suzukii as taught by teachings of Mazomenos, Polyakov, Cannesan, Keesey, Wäckers, Sato, Erland, Sannino, Zhang, Goldblum, NC state and incorporating the cherry component as taught by Shi. The claims structural features and limitations are explicitly taught in combination by the above art of record wherein the composition for attracting Drosophila suzukii comprising 1) fruit-based (cherry), 2) arabinogalactan (polysaccharide carriers), 3) cyclodextrins for stabilization and controlled release of volatile compounds, and 4) humectants in the insect bait formulation. The cherry-derived component materials (freeze-dried cherry powder or fresh cherry) are known host fruit attractants for D. suzukii and their inclusion in attractant compositions would have been an obvious choice to a PHOSITA. The recited range of 0.1 wt% to about 99 wt% encompasses nearly the entirety of the composition and therefore does not meaningfully limit the claim and this cherry-derived component is taught by Shi in view of Erland. Arabinogalactan is a known water-soluble polysaccharide carrier commonly used in substantial weight percentages to form matrices, binders, or bulking agents, and selecting arabinogalactan in an amount of 10 wt% to 60 wt% represents a routine formulation optimization of a known carrier. Therefore, Arabinogalactan properties and characteristics as a carrier, binder, thickening agent, are taught by Polyakov, Cannesan, Goldblum, in view of Sato and the motivation to combine into an insect lure/bait/attractant composition. The cyclodextrin (β-CD) is a known inclusion compound used to encapsulate and stabilize volatile organic compounds (fruit-derived volatiles) and is commonly employed in the claimed ranges. Selecting β-CD in an amount of 4.9 wt% to 14.9 wt% constitutes a routine optimization of a result-effective variable, and this β-CD in an insect composition is taught by Mazomenos in view of Wäckers. The humectant components are conventionally added to insect baits/lure/attractants to retain moisture and extend functional shelf life and the humectants are taught by Wäckers and the thiamine component is taught by Sannino. Each component performs its expected function and combining these known elements would have been obvious to a PHOSITA for achieving a predictable formulation of attracting D. suzukii with a reasonable expectation of success.
One would have been motivated to improve the composition by adding the dried D. suzukii powder as a conspecific component (frass, insect bodies, cuticles) and thiamine to the formulation in order enhance the specificity attraction and vector towards the target D. suzukii as taught by Keesey in view of Sannino. Furthermore, the combined teachings of the references and the known elements functions to achieve changing the oviposition, feeding and aggregating behavior and attracting the Drosophila suzukii from the ripening early stages of fruits. It would have been obvious to a PHOSITA to use this composition to lure or bait the D. suzukii away from the early stages of ripening fruit plants, preventing the insect for destroying the fruit at early stages. One of ordinary skill in the art would have found it obvious to control D. suzukii comprising treating an object or an area with an effective amount away from the actual fruit because D. suzukii destroys fruits by ovipositing the fruit at the early stages of ripening. Thus, it would have been obvious to a PHOSITA formulate such a composition using the known components of beta-cyclodextrins, arabinogalactan and include elements (cherry-derived components, thiamine, conspecifics (dried D. suzukii powder), humectants, optimized amounts to specifically target the attraction of D. suzukii and lure the D. suzukii fly to oviposit to a different site other than the ripening fruit.
One of ordinary skill in the art would have a reasonable expectation of success because all references are drawn to a composition and methods to control, attract, monitor and kill Drosophila suzukii. It is obvious to prepare the composition to control Drosophila suzukii and use the methods as taught by the references. It is obvious to combine prior art elements according to the known methods to yield predictable results. Please see MPEP 2141 (III)(A).
Response to Amendment / Declaration
The Declaration under 37 CFR 1.132 filed 12/18/2025 is insufficient to overcome the rejection of Claims 1-5 and 7-21 based upon insufficiency of disclosure under 35 U.S.C. 103 as set forth in the last Office action because: the Declaration asserts that it would not be obvious to modify Biobest’s composition to comprise arabinogalactan in combination with β-cyclodextrin (β-CD) with the specific amounts recited in amended claim 1. The main focus of the assertions is that the combination of arabinogalactan with β-cyclodextrin (β-CD), in the recited amounts, would have expected to suppress the release of Biobest’s required volatile compound to a level that would “prevent” the composition from even working for its intended purpose (i.e., preventing Drosophila suzukii egg laying).
Examiner respectfully disagrees. Firstly, the claimed composition is NOT intended to prevent Drosophila suzukii egg laying. The claimed composition intention is to lure Drosophila suzukii away from fruit of a plant to provide an egg laying site away from the fruit of the plant as recited in the amended claim 17. Therefore, this context of preventing D. suzukii egg laying is not accurate. Secondly, Biobest explicitly teaches the attractive effect of the melon-based composition is caused mainly by volatile fraction of the composition that evaporate and have identified compounds useful for attracting D. suzukii (page 9, lines 22-33), and these compounds may slowly evaporate from the composition, thereby attracting harmful insects, and in particular D. suzukii (page 10, line 3-4), and in order to obtain a slow release composition, i.e. a composition providing a controlled, effective, stable and long-lasting evaporation of the volatile fraction from the composition, humectants (agar, carrageenan, glycerol, sorbitol, maltitol) are included (page 17, lines 18-24), and further comprise one or more cyclodextrins (α-, β- or y-cyclodextrin, which may be functionalized with one or more functional groups (page 17, lines 33-35). The general knowledge of cyclodextrin inclusion complexes limit aroma degradation or loss during processing and storage cuts in favor of obviousness because controlled suppression is desirable in insect lures, extends lure lifetime, prevents burst effects and loss, Biobest seeks moderated emission of volatiles, not maximal instantaneous release of the attractant. Moreover, the Declaration asserts it is general known that arabinogalactan can also suppress diffusion of volatile compounds, decreasing volatility of hexanol resulting in reduce release as evidence by Exhibit C, and the combination of arabinogalactan and β-CD would further suppress volatiles as supported in exhibits D and E. These general knowledge features of arabinogalactan and β-CD are expected behavior, not unexpected results, arabinogalactan is known to reduce diffusion via physical entrapment, a PHOSITA would expect higher concentrations of either arabinogalactan or β-CD to further reduce volatility, thus no surprising effect. The suppression effect of volatiles does not equate to loss of function, it does not discourage use of these two components or pose incompatibility with the intended purpose. The volatile release rate is a result effective variable, increasing amounts of arabinogalactan or β-CD is predictably decreases release rate and predictably increases longevity, and adjusting known formulation parameters to achieve a known goal (to attract D. suzukii) is obvious optimization.
Response to Remarks/Arguments
Receipt of Applicant’s Remarks/Arguments filed 12/18/2025 have been fully considered but they are found not persuasive.
Rejection under 35 U.S.C § 103.
Applicant amended claim 1 to required arabinogalactan and β-CD in specific amounts and argues that prior art Biobest, Sato or Goldblum (individually or in combination) and with modification to Biobest’s composition would render unsuitable for its intended purpose of attracting Drosophila suzukii.
Applicant argues:
That active volatile compounds used in Biobest’s composition must be able to be timely volatized so that the Drosophila suzukii females can be attracted before they lay their eggs to prevent the damage that they cause, and that a PHOSITA would want to avoid any compositional components that would result in substantial delay of volatile release. However, the claims do not recite a time sensitive or even a time release critical component in the claimed composition, and thus this argument is not relevant.
That both arabinogalactan and β-CD inhibit release of volatile compounds and the recited amounts in the amended claim 1 to result in suppressing release of volatile compounds to a level that would prevent the composition from even working for its intended use (i.e., preventing Drosophila suzukii egg laying).
Examiner respectfully disagree. Firstly, the claimed composition is NOT intended to prevent Drosophila suzukii egg laying. The claimed composition intention is to lure Drosophila suzukii away from fruit of a plant to provide an egg laying site away from the fruit of the plant as recited in the amended claim 17. Secondly, β-CD is well established in prior art as a reversible inclusion host that reduces the vapor pressure of volatiles (fruit volatile) compounds, retarding there immediate release while permitting gradual, controlled emission over time, this property is documented across multiple fields including fragrance, flavor, and pheromone delivery, and a PHOSITA would have understood that controlled or slowed release is to be desirable in an insect attractant composition where maintaining an effective emission profile over time improves lure longevity and field performance. Accordingly, β-CD impact on volatile release provides a predictable formulation benefit that would have motivated its inclusion with known attractants, inclusion of β-CD lower’s the effective vapor pressure and slows evaporation as opposed to rapid release (burst) profile that quickly depletes attractants, and field practice aims for prolonged emission to sustain traps over days or weeks as discussed in prior art. Therefore, slowing release is an advantage, and not a drawback or avoidance of property. The motivations to use arabinogalactan and β-CD are noted in the rejections above.
Applicant’s arguments that higher amounts of arabinogalactan and β-CD suppress volatile release to a level that would render the composition unsuitable is unpersuasive, suppression of volatile does not mean lost of function and applicant have not shown lost of attraction across prior art references. Applicant’s argument relies on predictable and well-known effects of arabinogalactan and β-CD on volatile release and therefore does not rebut the prima facie case of obviousness.
Conclusion
No claims are allowed.
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/ANDRE MACH/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615