DETAILED ACTION
Applicants' arguments, filed 04/30/2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
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 .
Priority
The instant application claims domestic priority to PRO 62/861,987 filed 06/14/2019 and PRO 62/977,090 filed 02/14/2020. The instant application is a 371 of PCT/US20/37665 filed 06/14/2020.
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.
B) Claims 52-54, 56-59, 63, 65, 67 and 72-81 are rejected under 35 U.S.C. 103 as being unpatentable over Panicheva et al. (US Patent Applciation Publication 20110028319A1).
Panicheva recites solution for cut flower and plant preservation comprising: at least 99.5% by weight water; potassium; no more than 0.01% by weight hypochlorous acid; and dissolved oxygen, wherein the solution is electrochemically treated (Panicheva at claim 1). Panicheva recites wherein the solution comprises a pH of about 2.5 to 8 (Panicheva at claim 5). Panicheva teaches that the storage life may be extended upwards of 15-20 days or 25 days or possibly more, depending upon the conditions where the stems and flowers are stored and how soon they are placed in the solution (Panicheva at [0025]).
Panicheva differs from the instant claims in this rejection insofar as it does not teach the combination of the instantly recited components with sufficient specificity for anticipation. Panicheva teaches the components of the instant recited composition and uses each component of their established function in the art but does not explicitly combine the components together into a single embodiment or a preferred composition. However, given the disclosure of each component individually, it would have been prima facie obvious to a person having ordinary skill in the art at a time prior to the filing of the present patent application and following the teachings of Panicheva to have selected and combined known components for their established functions with predictable results. MPEP §2143 and §2144.06(I).
With regards to the ranges of hypochlorous acid, Panicheva recites no more than 0.01% by weight hypochlorous acid (Panicheva at claim 1) in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
With regards to the ranges of pH, Panicheva recites wherein the solution comprises a pH of about 2.5 to 8 (Panicheva at claim 5) in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I).
With regards to properties like stability and MIC, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP2112.01(I).
With regards to claim 77, Panicheva recites a composition with hypochlorous acid. Once the examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an nonobvious difference between the claimed product and the prior art product. In re Marosi, 710 F.2d 799, 803, 218 USPQ 289, 292-33 (Fed. Cir. 1983) See MPEP 2113(II).
Regarding instant claim 81, Panicheva recites method of extending cut flower and plant life comprising: providing an electrochemically treated aqueous solution having potassium, hypochlorous acid and dissolved oxygen; and immersing a stern in the electrochemically treated aqueous solution (Panicheva at claim 11).
Response to Arguments
Applicant's arguments filed 04/30/2026 have been fully considered but they are not persuasive.
Applicant argues that Panicheva does not teach the proper amount of hypochlorous acid. Therefore, the obviousness rejection should be withdrawn.
The Examiner does not agree. With regards to the ranges of hypochlorous acid, Panicheva recites no more than 0.01% by weight hypochlorous acid (Panicheva at claim 1), which overlaps with the ranges of the instant claims, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP§2144.05(I). The composition of Panicheva containing the same amount of hypochlorous acid would have the same properties and effects. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP2112.01(I). As such, Applicants arguments are not persuasive and the obviousness rejection stands.
Applicant argues that Panicheva teaches a preservative composition that has antimicrobial activity and has biocidal potassium therefore the composition is a microbiocidal solution and the obviousness rejection should be withdrawn.
The Examiner does not agree. Panicheva teaches that the benefits of this method include reducing cloudiness and slime formation in the solution, controlling unpleasant odor formation in the stem and any flower attached to the stem, extending storage life of the stem and any flower attached to the stem, and limiting mold growth and slime formation on the stem (Panicheva at [0025]). Panicheva teaches that composition contains compounds that could kill microbes like hypochlorous acid and potassium but the composition is not explicitly drawn to the elimination of all microbes. It is drawn to controlling, limiting, and reducing which falls in line with the instant limitation of “restrain, prohibits or otherwise prevents microbial population growth” of instant claims 52, 59, 77 and 81. The dosage of these components determines if the action is disinfection and sterilization or just preservation. The amounts of hypochlorous acid in Panicheva overlap with those of the instant specification. The independent claim 1 of Panicheva does not require a specific amount of potassium. As such, Applicants arguments are not persuasive and the obviousness rejection stands.
Applicant argues that the inclusion of potassium and specifically potassium chloride would make the composition biocidal therefore, the obviousness rejection should be withdrawn.
The Examiner does not agree. The independent claim 1 of Panicheva does not require a specific amount of potassium. The independent claim 1 of Panicheva does not require specifically potassium chloride. "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983). See MPEP 2123(I). Panicheva is good for all it contains including the use of potassium without necessarily a salt or a high dosage. The dosage of these components determines if the action is disinfection and sterilization or just preservation. The amounts of hypochlorous acid in Panicheva overlap with those of the instant specification. Panicheva teaches that composition contains compounds that could kill microbes like hypochlorous acid and potassium but the composition is not explicitly drawn to the elimination of all microbes. It is drawn to controlling, limiting, and reducing which falls in line with the instant limitation of “restrain, prohibits or otherwise prevents microbial population growth” of instant claims 52, 59, 77 and 81. Panicheva teaches that the benefits of this method include reducing cloudiness and slime formation in the solution, controlling unpleasant odor formation in the stem and any flower attached to the stem, extending storage life of the stem and any flower attached to the stem, and limiting mold growth and slime formation on the stem (Panicheva at [0025]). That it contains biocidal components does not mean that the composition or the agents are used in a dosage that will provide sanitization. Furthermore, the instant claims recite the prohibition or prevention of microbial growth, the addition of potassium would prohibit or prevent microbial growth. As such, Applicants arguments are not persuasive and the obviousness rejection stands.
Conclusion
No claims are presently allowable.
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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMANDA MICHELLE PETRITSCH whose telephone number is (571)272-6812. The examiner can normally be reached M-F 08:30-17:00 EST ALT Fridays.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana S. Kaup, can be reached at 571-272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AMANDA MICHELLE PETRITSCH/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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