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 .
Claims 1, 2, 6-9, 12, 13, 15, 16 and 18 are presented for examination.
The amendments and remarks filed on 11/10/2025 have been received and entered.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1, 2, 12, 13, 15-16 and 18 are rejected under 35 U.S.C. 101 because the claimed invention
is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea)
without significantly more.
First, the claimed invention must be to one of the four statutory categories. 35 U.S.C. 101
defines the four categories of invention that Congress deemed to be the appropriate subject matter of a
patent: processes, machines, manufactures and compositions of matter. The latter three categories
define "things" or "products" while the first category defines "actions" (i.e., inventions that consist of a
series of steps or acts to be performed). See 35 U.S.C. 100(b) ("The term 'process' means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or
material."). See MPEP § 2106.03 for detailed information on the four categories.
Second, the claimed invention also must qualify as patent-eligible subject matter, i.e., the claim
must not be directed to a judicial exception unless the claim as a whole includes additional limitations
amounting to significantly more than the exception. The judicial exceptions (also called "judicially
recognized exceptions" or simply "exceptions") are subject matter that the courts have found to be
outside of, or exceptions to, the four statutory categories of invention, and are limited to abstract ideas,
laws of nature and natural phenomena (including products of nature). Alice Corp. Pty. Ltd. V. CLS Bank
Int'l, 573 U.S. 208, 216, 110 USPQ2d 1976, 1980 (2014) (citing Ass'n for Molecular Pathology V. Myriad Genetics, Inc., 569 U.S. 576, 589, 106 USPQ2d 1972, 1979 (2013). See MPEP § 2106.04 for detailed
information on the judicial exceptions.
Analysis of the flowchart:
Step 1, is the claim to a process, machine, manufacture or composition of matter?
Yes. The claim is drawn to a composition of matter.
Step 2A. Prong one: Is the claim directed to a law of nature, a natural phenomenon (product of nature),
or an abstract idea?
Yes, Claims 1, 2, 12, 13, 15, 16 and 18 are drawn to a weed control product comprising:
natural and non-toxic active ingredients including sodium chloride and peppermint oil, wherein the
sodium chloride is 5% by weight, + 2 to 3% by weight, the peppermint oil is 2% by weight, + 2 to 3% by
weight; and inert ingredients including acetic acid, citric acid, magnesium sulfate, sodium sulfate, and
soap.
Step 2A. Prong two: Does the claims recite additional elements that amount to significantly more than
the judicial exception?
No. The claim(s) 1, 2, 12, 13, 15, 16 and 18 does/do not include additional elements that are sufficient to amount to
significantly more than the judicial exception, as there is no indication that extraction has caused the
component of an natural compound that comprises the claimed compositions to have any
characteristics that are different from the naturally occurring component of an natural compound.
Claims require inert ingredients present in the composition. However, there is no indication that the
inert ingredients claimed in the compositions result in a markedly different characteristic for the
composition as compared to the components that occur in the nature, considering that all the claimed
inert ingredients are natural products as well.
The claim(s) recite(s) a weed control product comprising: non-toxic active ingredients including
sodium chloride and peppermint oil; and inert ingredients including acetic acid, citric acid, magnesium
sulfate, sodium sulfate, and soap. This judicial exception is not integrated into a practical application
because a product having all ingredients from nature do not qualify as integration into the practical
application. The claim(s) does/do not include additional elements that are sufficient to amount to
significantly more than the judicial exception because no additional elements is recited other than the
natural products.
For the reasons described above, the claimed compositions are not markedly different from
their closest naturally occurring counterparts and thus are product of nature judicial exceptions. The
claims do not include additional elements that are sufficient to amount to significantly more than the
judicial exception because the claims do not recite any additional elements beyond the claimed
compositions themselves. Also, this is a product claim and since there are no claimed method steps,
there are no additional elements that apply, rely on, or use the judicial exception in a manner that
imposes a meaningful limit on the judicial exception themselves. Therefore, the claims do not recite
something significantly more thana judicial exception and are thus deemed patent ineligible subject
matter.
Claim Rejections - 35 USC § 103
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.
Claim(s) 1,2, 6-9, 12, 13 and 15, 16 and 18 are is/are rejected under 35 U.S.C. 103 as being
unpatentable over Ibanez et al. (Phytotoxicity of Essential Oils on Selected Weeds: Potential Hazard on
Food Crops) in view of Katie (All Natural Weed Killer) and further in view of Abouzeina et al. (Efficacy
Comparison of Some New Natural-Product Herbicides for Weed Control at Two Growth Stages) Zulkaliph
(Use of Saline Water for Weed Control in Seashore Paspalum ('Paspalum vginatum" ) and
WO2007003112.
Ibanez et al. teach that essential oils, such as peppermint having phytotoxic activity against weeds. See
the abstract. Katie teaches the use of the combination of vinegar (acetic acid), Epsom salt and soap as
natural weed killer. See the entire document. Abouzeina teaches the use of acetic acid (5%), acetic acid
(30%), citric acid (10%), citric acid (5%) + garlic (0.2%), citric acid (10%) + garlic(0.2%), clove oil (45.6%),
and corn gluten meal (CGM) compounds as natural-product herbicides for weed control. See the
abstract. Zulkaliph teaches the use of saline water (sodium chloride) for weed control. See the abstract.
Ibanez does not teach the use of sodium sulfate and magnesium sulfate in the herbicidal formulation.
WO patent teaches a weed control herbicide comprising magnesium sulfate and sodium sulfate. See
the abstract. The magnesium sulfate is taught to be 7% solution 1-5 serving, 2-6 parts of 9% sodium
sulfate and 0.15 parts of peppermint essence. See claim 4.
It would have been obvious toa person skilled in the art to add acetic acid, citric acid, sodium chloride,
Epson salt to the composition of the Ibanez, motivated by teachings of the secondary references, which
teach the use of the remaining ingredients for killing weeds as old and well known. Applicant's
attention is directed to In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980), the court
stated It is prima facie obvious to combine two compositions each of which is taught by the prior art to
be useful for the same purpose, in order to form a third composition to be used for the very same purpose. [T]he idea of combining them flows logically from their having been individually taught in the
prior art." In the instant case to combine ingredients being used individually for the same purpose
would have been obvious toa person skilled in the art. The determination of optimum proportions or
amounts are considered to be within the skill of the artisan in the absence of evidence to the contrary.
Applicant's attention is drawn to In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), the
court stated that "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".
Applicant has presented no evidence to the unexpected or unobvious nature of the claimed invention,
and as such, claims 1, 2, 6-9, 12, 13, 15, 16 and 18 are properly rejected under 35 U.S.C. 103(a).
Response to Arguments
Applicant’s arguments and declaration have been noted. Applicant in his remarks regarding 35 U.S.C. 101 argues that “because the product as a whole is not naturally occurring, particularly in view of the concentration of active ingredients as claimed. (MPEP 2106.04(c)(II)). In this case, the ingredients combined into the claimed formulation have markedly different characteristics as compared to the
components individually. In this regard, paragraphs 12-16 describes the function and synergisms
of the inert ingredients of the claimed subject matter. For example, acetic acid lowers the surface
pH of the weed and dissolves plant cell walls and membranes, but when combined with the other
components of the formulation works synergistically with sodium chloride to intensify osmotic
stress and with soap to improve surface wetting and acid dispersion across the weed. (Declaration,
para. 12). Citric acid is an acidifier, but when combined with acetic acid, the citric acid increases the persistence of low pH and enhances the dehydration effect on the weed. (Declaration, para. 13).
Magnesium sulfate helps regulates ionic balance, but when combined in the formulation it
improves penetration of both sodium chloride and organic acids. (Declaration, para. 14). Soap is
hydrophobic and helps reduce surface tension, but when combined with peppermint oil and acetic
acid, the soap facilitates penetration through the weed's cuticle. (Declaration, para. 15). Sodium
sulfate is a stabilizer, but when combined in the formulation the sodium sulfate helps supports the
synergistic activity between sodium chloride and magnesium sulfate. (Declaration, para. 16). The
combination of ingredients in the formulation provides markedly different characteristics than the
individual components, where the composition penetrates the cell walls of the weed and carries
the acid ingredients into the weed killing the weed. As a result, the composition kills weeds quickly
and permanently. (Para. [0017]-[0018]; FIG. 2).
Accordingly, the claimed combination of ingredients has markedly different characteristics,
and is not a "product of nature" exception, thereby qualifying as eligible subject matter”. It is the examiner’s position that applicant argues the function of each ingredient in the combination as claimed herein. Applicant is combining different components obtained from nature as having anti-weed activity and is using the combination for controlling weed and alleging synergism. There is no evidence to support synergism of the claimed combination. In order to establish synergism each component needs to be tested separately for controlling weeds and then the overall result should be more than the additive result of the claimed combination. Fig 2, does not show such result. To use a sprayer is the inherent property of agricultural products. Applicant’s arguments regarding the obviousness rejection have been noted. Applicant in his remarks argues that “While In re Kerkhoven, 626 F.2d, supra, permits combining two references for the same purpose, such as weed control, the resulting combination must still satisfy all aspects of the obviousness analysis. In this case, the cited references fail to contemplate or suggest the combination of sodium chloride and peppermint oil as active ingredients, as neither Ibanez nor Zulkaliph suggest combining the peppermint oil and sea water, respectively, together. Further, Katie and Abouzeina teach acetic acid and citric acid, respectively, as active ingredients and not intert ingredients as claimed. (See Declaration, para. 21-24). Thus, a skilled artisan would not look to Katie and Abouzeina to arrive at inert ingredients including acetic acid and citric acid as claimed”. It is the examiner’s position that the prior art teaches the use of the claimed components as herbicide. Therefore, calling them inert or active ingredients, does not create a patentably new composition and method of use. The submission of data to the synergistic effect of the claimed combination commensurate in scope with the claimed language, will overcome the obviousness rejection.
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 ZOHREH A FAY whose telephone number is (703)756-1800. The examiner can normally be reached Monday-Friday 9:30AM-6:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue Liu can be reached at 571-272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ZOHREH A FAY/Primary Examiner, Art Unit 1617