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 .
This action is responsive to the amendment filed on February 13, 2026.
Claims 1-2, 5-13, 15-33 are pending. Claims 7-13, 15-16, 25-33 are withdrawn.
The rejection of claim 1 under U.S.C. 112(a) is withdrawn in view of Applicant’s amendment.
Claims 1-2, 17-19, 21-22 under 35 U.S.C. 102(a)(1) as being anticipated Tanaka et al is withdrawn in view of Applicant’s amendment.
Claims 1-2, 5-6, 17-24 stands rejected under 35 U.S.C. 103 as being unpatentable over Straetmans et al.
Claim Rejections - 35 USC § 103
Claims 1-2, 5-6, 17-24 are rejected under 35 U.S.C. 103 as being unpatentable over Straetmans et al (US Patent Application 2010/0264359 (already of record)).
Regarding claims 1-2, 5-6, 17-24, Straetmans et al teaches a biocidal mixture composition comprising at least one biocide that is not a polyamine and at least one polyamine used in material protection or for preventing discoloration of industrial materials (which satisfies claimed preservation composition) (Abstract). Straetmans et al further teaches polyamines having the formula II
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wherein n, m and o in each is a number from 1-10, preferably 2-5; Polyetheramine T403 as an example (Paragraphs 25-28). Straetmans et al further teaches biocides are preferably fungicides and bactericides (Paragraph 18) wherein preferred fungicides and bactericides include benzisothiazolinone (Paragraph 20). Straetmans et al further teaches the ratio of the biocides to polyamine is preferably 1:5-2:1 (which overlaps the claimed weight ratios of (a):(b) and overlaps the claimed ratio of 1-45wt% of (a)) (Paragraph 29). Straetmans et al further teaches 20wt% or 45wt% of benzisothiazolinone or biocide in the composition (Paragraphs 72,77). Straetmans et al further teaches the addition of 0.01-5wt%sodium pyrithione (Paragraph 63). However, Straetmans et al fails to specifically disclose a preferred composition comprising Polyetheramine T403 and benzisothiazolinone at a weight ratio of 1:25-2:3, 1-45wt% of (a) in the composition.
With regard to a preferred composition comprising Polyetheramine T403 and benzisothiazolinone at a weight ratio of 1:25-2:3, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided a composition comprising Polyetheramine T403 and benzisothiazolinone at a weight ratio of 1:25-2:3 as Straetmans et al teaches preferred fungicides and bactericides include benzisothiazolinone and preferred polyamine including Polyetheramine T403 in order to provide a biocidal composition at a weight ratio of preferably 1:5-2:1, which overlaps the claimed ratios. A prima facie case of obviousness exists because the claimed ranges "overlap or lie inside ranges disclosed by the prior art", see In re Wertheim, 541 F.2d 257,191 USPQ 90 (CCPA 1976; In re Woodruff; 919 F.2d 1575,16USPQ2d 1934 (Fed. Cir. 1990). See MPEP 2144.05(I).
With regard to 1-45wt% of (a) in the composition, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided 1-45wt% of (a) in the composition in Straetmans et al as Straetmans et al teaches 20wt% or 45wt% of benzisothiazolinone or biocide in the composition (Paragraphs 72,77) and Straetmans et al teaching of 1:5-2:1 overlaps 1-45wt% of (a), as both (a) and (b) are the only required components of the composition. For example, a ratio of 1:3 of (a):(b), would satisfy a composition comprising 33.3wt% of (a) and 66.6wt% of (b).
Response to Arguments
Applicant's arguments filed February 13, 2026 have been fully considered but they are not persuasive.
With respect to the obviousness rejection over Straetmans et al, Applicant argues that polyamine is plural and Straetmans et al includes a mixture of D230 and 1,5-diamino-2-methylpentane. The Examiner respectfully disagrees with the above argument because Straetmans et al teaches a composition comprising at least one biocide that is not a polyamine and at least one polyamine (Abstract). Straetmans et al further teaches the composition can include 1,5-diamino-2-methylpentane or a polyetheramine (Paragraphs 25, 28). Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). Furthermore, “[t]he prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed….” In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004). Likewise, a reference is not limited to the working examples, see In re Fracalossi, 215 USPQ 569 (CCPA 1982).
Applicant further argues unexpected results. The Examiner respectfully disagrees with Applicant’s argument as it has been held that to overcome a reasonable case of prima facie obviousness a given claim must be commensurate in scope with any showing of unexpected results, In re Greenfield, 197 USPQ 227. To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). Applicant argues that D230 has a synergy index of 1.36 whereas T403 has a synergy index of 0.35. The Examiner respectfully disagrees with Applicant’s argument as the instant claims aren’t limited to T403 (or Jeffad MW703 as it appears this has similar results). Also, the ratio is 1:1 as opposed to a ratio from 1:25-2:3 as recited in the instant claims.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 TANISHA DIGGS whose telephone number is (571)270-7730. The examiner can normally be reached Monday, Tuesday and Friday, 9:00AM-5:30PM.
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/TANISHA DIGGS/Primary Examiner, Art Unit 1761 May 16, 2026
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