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 .
Summary
Claims 1, 3-6, and 9 are pending in this office action. Claim 2, 7, and 8 are cancelled. Claims 10-19 are withdrawn from consideration. All pending claims are under examination in this application. The Applicant is encouraged to amend the withdrawn and pending claims in parallel for purposes of rejoinder upon allowance.
Priority
The current application filed on May 21, 2021 claims no domestic or foreign priority.
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 non-obviousness.
Claims 1, 3-6, and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Jones (US2008/0069785A1) in view of Manhas et al. (US2014/0242199A1) and Messina (US9271486B2).
[The Examiner is going to introduce each reference and then combine them where appropriate for the rejection of instant claims 1, 3-6, and 9.]
1. Jones
Jones is regarded as being the prior art closest to the subject-matter of the present application as it teaches pest-control compositions, and methods and products utilizing same (see title). Furthermore, Jones discloses pest-combating compositions containing pest-control actives that are formulated for sustained pest-combating efficacy, utilizing actives fatty acids, undecanone, and/or soy methyl ester in varying combinations. Pest-combating includes both repellency and killing of pests. In specific formulations, the pest-combating composition includes any one, two or three
of the active agents soy methyl ester, fatty acid and undecanone. Fatty acids may be unmodified or may be modified by transesterification or methanolysis of the oleochemical or conversion of the fatty acids to alkyl esters. The composition
may be constituted as a spray composition, lotion, paste, or other compositional form. Pests that may be usefully combated with such composition include aphids, ants, bed bugs, bees, beetles, centipedes, caterpillars, chiggers, cockroaches, crickets, cutworms, earwigs, fleas, flies, fire ants, gnats, grasshoppers, hookworn1s, japanese beetles, June bugs, lice, locust, maggots, mealworms, mealybugs, millipedes,
mites, mosquitoes, moths, pillbugs, scorpions, silverfish, spiders, stinkbugs, termites, thrips, ticks, wasps, and white flies. (see abstract). Additionally, Jones discloses the use of this composition on both reptiles and amphibian pests (see paragraph [0054]).
2. Manhas et al.
Manhas et al. teach pest control formulations and methods of making and using same (see title). Manhas et al. disclose compositions useful for controlling pests. In some embodiments, the composition includes a pesticidal natural oil and a polar aromatic solvent. Methods of making and using the compositions are disclosed. (see abstract).
3. Messina
Messina teaches combination animal repellents (see title). Furthermore, Messina discloses compositions and methods for the control and management of wildlife populations (including domesticated animals) and pests such as rodents, birds including geese, deer and other herbivores such as rabbits, ground hogs, raccoons, moose and elk, tunneling animals such as moles, voles and gophers and insects, carnivores and
other organisms such as predators. Specifically provided are FIFRA (Federal Insecticide, Fungicide, Rodenticide Act) exemption-based formulations which may be applied to natural or artificial surfaces (see abstract).
Additionally, Messina disclose examples of pests include, but are
not limited to, insects, mice, squirrels, reptiles, rodents and other animals ( e.g., predators, household pets and wild life), unwanted plants (weeds), fungi, microorganisms such as bacteria and viruses, and prions (see column 6, lines 3-7).
Combination of Jones, Messina, and Manhas et al.
Regarding instant claim 1, Jones, Messina, and Manhas et al. teach a reptile and amphibian repellant composition. The necessary citations within Jones, Messina, and Manhas et al. that correspond to instant claim 1 are compiled within Table I.
Table I
Instant Claim 1
Jones, Messina, and Manhas et al. Citations
a reptile and amphibian repellant composition
Jones discloses the use of this composition as a repellant on both reptiles and amphibian pests (see paragraph [0054] within Jones)
comprising: a first volume of water
Jones discloses that the pest-control compositions of the invention
may be in any suitable form, such as for example oil-in-water emulsions, or other emulsified forms, or in water-based
formulations (see paragraph [0067] within Jones).
and a second volume of one or more active ingredients
Jones discloses that in specific formulations, the pest-combating composition includes any one, two or three of the active agents (see abstract within Jones).
wherein the one or more active ingredients is determined to have a deterring or repelling effect on a target reptile or amphibian organism
Jones discloses that pest control compositions of the invention can variously include pest repellants, pesticides, pest attractants, etc., as may be useful for pest control in a given application. Such applications may include, but are not limited to, residential, industrial, animals and livestock, agriculture, horticulture, and gardening applications. For example, the pest control composition can be employed to control pests such as arthropod pests, agricultural, horticulture, and garden pests, rodent pests and reptile and amphibian pests (see paragraph [0054] within Jones).
the one or more active ingredients further comprise tea tree oil, peppermint oil, and citric acid; and an aggregate volume of the tea tree oil, peppermint oil, and citric acid is approximately 2% of the total volume
Manhas et al. disclose the use of tea tree oil (see paragraph [0053] within Manhas et al.) and peppermint oil (see paragraph [0055] within Manhas et al.). Furthermore, Manhas et al. disclose that other oils that can be used, alone or in combination, as additives in some embodiments of the present invention can be derived from plant, animal or mineral sources, or be synthetic. Such oils may be added as a carrier and/or for various other purposes, including but not limited to, improving odor characteristics ( e.g. acting as an odor-masking agent), improving properties of another oil used as an active ingredient, decreasing repellency, acting as a pesticide, and/or improving other properties of the formulation (see paragraph [0053] within Manhas et al.). Manhas et al. further disclose that the pesticidal composition comprises a natural oil at a concentration of between 0.25% and 99.3% by weight (see paragraph [0062] within Manhas et al.). Moreover, Manhas et al. disclose ‘Solution A’ within Example 15 which includes 5.5% neem oil by weight, 15.5% acetophenone by weight, 8% natural oils (lemongrass oil, spearmint oil, and wintergreen oil) by weight and 5.0% surfactant by weight (see Example 15 within Manhas et al.). Thus, disclosing a specific example where the combination of the natural oils is 8%. This value is much closer to 2% than the large range of 0.25% to 99.3% by weight. The 8% could be optimized under routine experimental conditions to 2% in the overall formulation.
Additionally, Manhas et al. disclose the use of citric acid as an inert carrier (see paragraph [0060] within Manhas et al.). Moreover, Jones also discloses the use of citric acid as an inert carrier in their pesticidal composition (see paragraph [0254] within Manhas et al.). Jones cites the use of citric acid between 0.25% and 4% by weight (see examples of pesticidal compositions in paragraphs [0096-0247] within Jones).
wherein the one or more active ingredients comprise ammonia and
Messina discloses the use of "other ingredients" which may be added to the base formulations include, but are not limited to, ingredients which are disclosed herein or known to those skilled in the art. (see column 16, lines 30-33; within Messina) Other ingredients may also include ammonia (see column 16, line 41; within Messina); also see PTO-892 NPL U regarding the toxicity of ammonia for both reptiles and amphibians.
wherein the one or more active ingredients have a deterring or repelling effect on a food source of the target reptile or amphibian organism.
Messina discloses that a "repellent" as used herein is any composition or formulation that makes unattractive to pests a habitat, food source or other site ordinarily sought or frequented. The term "pest" is intended to include living organisms that occur where they are not wanted or that cause damage to crops or food or turf or humans or other animals. Examples of pests include, but are not limited to, insects, mice, squirrels, reptiles, rodents and other animals ( e.g., predators, household pets and wild life), unwanted plants (weeds), fungi, microorganisms such as bacteria and viruses, and prions [see columns 5 and 6, 5(lines 65-67) and 6(lines 1-7) within Messina].
Therefore, a skilled artisan (POSITA; person having ordinary skill in the art) would combine the Jones, Messina, and Manhas et al. references to make obvious the present invention and compose a reptile and amphibian repellant composition.
[Hereinafter, all instant claims dependent on claim 1 directly or indirectly are disclosed in full by the teachings of Jones, Messina, and Manhas et al.]
Regarding instant claim 3, Jones, Messina, and Manhas et al. teach the composition according to instant claim 1, wherein the composition is in a liquid, aqueous form. Jones discloses the pest-control compositions of the invention may be in any suitable form, such as for example oil-in-water emulsions, or other emulsified forms, or in water-based formulations (see paragraph [0067] within Jones).
Regarding instant claim 4, Jones, Messina, and Manhas et al. teach the composition according to instant claim 1, wherein the first volume is greater in magnitude than the second volume. Jones discloses an oil-in-water composition in which the aqueous phase comprises 72% and the oil phase containing the active ingredient comprises 28% (see paragraphs [0184-0200] within Jones).
Regarding instant claim 5, Jones, Messina, and Manhas et al. teach the composition according to instant claim 1, wherein the composition has a total volume and: the first volume is approximately 60% of the total volume; and the second volume is approximately 40% of the total volume. Jones discloses several cited examples where the first volume has a range of 30%-75% by weight, and the second volume has a range of 18%-69% by weight (see paragraphs [0096-0247] within Jones). A research and development scientist (POSITA) would be able to compose the composition having a first volume of 60%, and a second volume of 40% under routine experimentation.
Regarding instant claim 6, Jones, Messina, and Manhas et al. teach the composition according to instant claim 1, wherein the one or more active ingredients comprise at least one of: a weak base compound according to a corresponding pH level; and a weak acid compound according to a corresponding pH level. Jones discloses one of the active agents to be a fatty acid (see abstract and paragraph [0007] within Jones). The term "fatty acids" refers to alkyl chains having a carboxylic acid substituent at one end of the alkyl chain and a methyl (CH3) substituent at the other end of the alkyl chain. By definition a fatty acid is a weak acid with a pKa around 4.5.
Regarding instant claim 9, Jones, Messina, and Manhas et al. teach the composition according to instant claim 8, wherein: the first volume is approximately eight cups; the second volume is approximately five cups; a volume of the tea tree oil is approximately two tablespoons; a volume of the peppermint oil is approximately two tablespoons; and a volume of the citric acid is approximately one-eighth of a teaspoon. The necessary conversion to both milliliters and their composition percent values along with the citations from the appropriate reference are compiled within Table II.
Table II
Instant Claim 9 Ingredient
Conversion to mL
Total mL
Percent
Citation
8 cups water
1 cup = 236.6 mL
1893 mL
~60%
30%-75%; the pesticidal compositions within Jones cite this range (see paragraphs [0096-0247])
5 cups active
1 cup = 236.6 mL
1183 mL
~38%
18%-69%; the pesticidal compositions within Jones cite this range (see paragraphs [0096-0247])
2 tablespoons Tea tree oil
1 tablespoon = 14.8 mL
29.6 mL
~0.9%
See instant claim 8 discussion within Manhas et al.
2 tablespoons Peppermint oil
1 tablespoon = 14.8 mL
29.6 mL
~0.9%
See instant claim 8 discussion within Manhas et al.
1/8 teaspoon citric acid
1 teaspoon = 4.9 mL
0.6 mL
~0.02%
See instant claim 8 discussion within Manhas et al.
A research and development scientist (POSITA) would be able to compose the composition presented in Table II under routine experimentation.
Obviousness
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the pesticidal composition for reptiles and amphibians disclosed by Jones using the teachings of both Messina and Manhas et al. to incorporate the use of ammonia, tea tree oil, peppermint oil, and citric acid as part of the active ingredients. Starting with Jones, the skilled person only had to try the necessary claim limitations disclosed by both Messina and Manhas et al., to arrive at the present application without employing inventive skill. This combination of the pesticidal composition for reptiles and amphibians taught by Jones along with the necessary use of the claim limitations disclosed by both Messina and Manhas et al. would allow a research and development scientist (POSITA) to develop the invention taught in the instant application. It would have only required routine experimentation to modify the pesticidal composition for reptiles and amphibians disclosed by Jones with the use of the necessary use the claim limitations disclosed by both Messina and Manhas et al. This combined modification would have led to an enhanced pesticidal composition for reptiles and amphibians that would be beneficial for consumers.
Response to Arguments
Applicant's arguments filed August 26, 2025 have been fully considered but they are not persuasive.
Applicant Argument: The Applicant argues that the very large range of 0.25%-99.3% by wt. within Manhas et al. for the natural oils makes the obviousness rejection not appropriate for a specific 2% volume.
Examiner’s Rebuttal: The Examiner respectfully disagrees. Manhas et al. disclose ‘Solution A’ within Example 15 which includes 5.5% neem oil by weight, 15.5% acetophenone by weight, 8% natural oils (lemongrass oil, spearmint oil, and wintergreen oil) by weight and 5.0% surfactant by weight (see Example 15 within Manhas et al.). Thus, disclosing a specific example where the combination of the natural oils is 8%. This value is much closer to 2% than the large range of 0.25% to 99.3% by weight. The 8% could be optimized under routine experimental conditions to 2% in the overall formulation. [Where the prior at teaches a range that does not overlap or touch but is close the rejection must be based on obviousness which takes differences into account." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (Claims to titanium (Ti) alloy with 0.8% nickel (Ni) and 0.3% molybdenum (Mo) were not anticipated by, although they were held obvious over, a graph in a Russian article on Ti-Mo-Ni alloys in which the graph contained an actual data point corresponding to a Ti alloy containing 0.25% Mo and 0.75% Ni.).] This concludes routine optimization would be carried out, and a prima facie case for obviousness is fully established.
Therefore, the 35 U.S.C. §103 rejection is maintained for instant claims 1, 3-6, and 9.
Conclusion
No claims are allowed.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN W LIPPERT III whose telephone number is (571)270-0862. The examiner can normally be reached Monday - Thursday 9:00 AM - 5:00 PM.
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/JOHN W LIPPERT III/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615