DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 10/17/2025 has been entered.
Applicants' arguments, filed 10/17/2025, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 § 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 56-58, 67, and 78-80 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.
Claim 56 recites the limitation "the hypochlorous acid" in line 1. There is insufficient antecedent basis for this limitation in the claim. The limitation is not present in the depend claim therefore there is insufficient antecedent basis for the limitation. Claims 57-58 depend from claim 56 and are therefore indefinite.
Claim 78 recites the limitation "the hypochlorous acid" in line 1. There is insufficient antecedent basis for this limitation in the claim. The limitation is not present in the depend claim therefore there is insufficient antecedent basis for the limitation. Claims 79-80 depend from claim 78 and are therefore indefinite.
Claim 67 recites the limitation “The microbiostatic composition according to Claim 52, wherein the microbiostatic composition does not comprise a metal salt, ozone, or hydrogen peroxide”. It is presently unclear if the claim limitation intends for the composition to not comprise metal salt AND not comprise ozone AND not comprise hydrogen peroxide. It is presently unclear if the claim limitation intends for the composition to not comprise metal salt OR not comprise ozone OR not comprise hydrogen peroxide. It is unclear if the composition may for example comprise a metal salt and NOT an ozone and fall within the claim limitation. For the purposes of examination in the prior art the broadest reasonable interpretation is applied wherein the composition does not comprise one of the three list items. Meaning a composition that comprises a metal salt and hydrogen peroxide and does not comprise ozone can be considered as falling within the instantly claimed limitation.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 53 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 53 depends from claim 52 and does not further limit the claim from which it depends. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
A) Claims 52-54 ,59, 63, 65, 67 and 81 are rejected under 35 U.S.C. 103 as being unpatentable over Mutou (US Patent Application Publication 20110046040A1).
Mutou recites a microorganism-inactivating agent comprising a composition containing γ-polyglutamic acid and/or cross-linked product of γ-polyglutamic acid; a calcium ion donor; a sodium ion donor; and an aluminum ion donor (Mutou at claim 1). Mutou recites further comprising one or more selected from microbiostatic agents and microbicides (Mutou at claim 2). Mutou recites wherein said cationic compound is polypeptide mainly consisting of basic amino acids (Mutou at claim 4). Mutou recites wherein said polypeptide is ε-poly-L-lysine (Mutou at claim 5). Mutou recites wherein the mass ratio between the contents of said composition and said ε-poly-L-lysine is 1:10 to 500:1 (Mutou at claim 6). Mutou recites wherein said composition is added to a concentration of 1 to 50000 ppm and said ε-poly-L-lysine is added to a concentration of 0.1 to 100 ppm (Mutou at claim 15). Mutou recites a method for inactivating a microorganism in water containing said microorganism, comprising a step of bringing a composition containing γ-polyglutamic acid and/or cross-linked product of γ-polyglutamic acid; a calcium ion donor; a sodium ion donor; and an aluminum ion donor into contact with said water containing said microorganism (Mutou at claim 7). Mutou teaches a pH pf 6 to 9 (Mutou at [0064]).
Mutou 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. Mutou 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 Mutou to have selected and combined known components for their established functions with predictable results. MPEP §2143 and §2144.06(I).
Regarding instant claim 52, Mutou recites a microorganism-inactivating agent comprising a composition containing γ-polyglutamic acid and/or cross-linked product of γ-polyglutamic acid; a calcium ion donor; a sodium ion donor; and an aluminum ion donor (Mutou at claim 1). Mutou recites wherein said composition is added to a concentration of 1 to 50000 ppm and said ε-poly-L-lysine is added to a concentration of 0.1 to 100 ppm (Mutou at claim 15), which overlaps the instantly claimed range of at least 0.1 ppm to less than 0.5 ppm. Mutou teaches a pH pf 6 to 9 (Mutou at [0064]), which overlaps the instantly claimed range of about 4 to about 6. 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).
Regarding instant claim 53, Mutou teaches a pH pf 6 to 9 (Mutou at [0064]), which overlaps the instantly claimed range of about 4 to about 6. 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).
Regarding instant claim 54, Mutou teaches a pH pf 6 to 9 (Mutou at [0064]), which overlaps the instantly claimed range of about 5 to about 6. 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).
Regarding instant claim 59, Mutou recites a microorganism-inactivating agent comprising a composition containing γ-polyglutamic acid and/or cross-linked product of γ-polyglutamic acid; a calcium ion donor; a sodium ion donor; and an aluminum ion donor (Mutou at claim 1). Mutou recites wherein said composition is added to a concentration of 1 to 50000 ppm and said ε-poly-L-lysine is added to a concentration of 0.1 to 100 ppm (Mutou at claim 15), which overlaps the instantly claimed range of at least 0.1 ppm to less than 0.5 ppm. Mutou teaches a pH pf 6 to 9 (Mutou at [0064]), which overlaps the instantly claimed range of about 4 to about 6. 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). 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).
Regarding instant claim 63, Mutou recites a microorganism-inactivating agent comprising a composition containing γ-polyglutamic acid and/or cross-linked product of γ-polyglutamic acid; a calcium ion donor; a sodium ion donor; and an aluminum ion donor (Mutou at claim 1). Mutou recites wherein said composition is added to a concentration of 1 to 50000 ppm and said ε-poly-L-lysine is added to a concentration of 0.1 to 100 ppm (Mutou at claim 15), which overlaps the instantly claimed range of at least 0.1 ppm to less than 0.5 ppm. Mutou teaches a pH pf 6 to 9 (Mutou at [0064]), which overlaps the instantly claimed range of about 4 to about 6. 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). 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).
Regarding instant claim 65, Mutou recites a microorganism-inactivating agent comprising a composition containing γ-polyglutamic acid and/or cross-linked product of γ-polyglutamic acid; a calcium ion donor; a sodium ion donor; and an aluminum ion donor (Mutou at claim 1). Mutou recites wherein said composition is added to a concentration of 1 to 50000 ppm and said ε-poly-L-lysine is added to a concentration of 0.1 to 100 ppm (Mutou at claim 15), which overlaps the instantly claimed range of at least 0.1 ppm to less than 0.5 ppm. Mutou teaches a pH pf 6 to 9 (Mutou at [0064]), which overlaps the instantly claimed range of about 4 to about 6. 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). 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).
Regarding instant claim 67, Mutou does not require an ozone or hydrogen peroxide. Mutou recites the use of γ-polyglutamic acid and/or cross-linked product of γ-polyglutamic acid; a calcium ion donor; a sodium ion donor; and an aluminum ion donor (Mutou at claim 1) but does not require that they be in the form of a metal salt.
Regarding instant claim 81, Mutou teaches wherein a composition containing γ-polyglutamic acid and/or cross-linked product of γ-polyglutamic acid; a calcium ion donor; a sodium ion donor; and an aluminum ion donor; and one or more selected from microbiostatic agents and microbicides are added to water at the same time and brought into contact with the water (Mutou at claim 11).
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 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 with respect to claims have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
No claims are presently allowable.
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.
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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