DETAILED ACTION
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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, 09/09/2025, has been entered.
Status of Application
Receipt of the amendments to the claims and the applicant arguments/remarks, filed 09/09/2025, is acknowledged.
Claims 1, 3, 5-17, 20-27 are pending in this action. Claims 2, 4, 18-19 have been cancelled previously. Claims 1, 6 have been amended. New claim 27 has been added. No new matter was added. Claims 1, 3, 5-17, 20-27 are currently under consideration.
Any rejection or objection not reiterated in this action is withdrawn. Applicant's amendments necessitated new ground(s) of rejection presented in this office action.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . 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 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.
Priority
This application is a 371 of PCT/US2020/032554, filed May 13, 2020, which claims benefit of provisional U.S. Application No. 62/851,688, filed May 23, 2019.
Claim Objections
Claim 21 is objected to because of the following informalities: Claim 21 is dependent on cancelled claim 19. Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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.
Claim 1, 3, 5-17, 20-27 is 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 pre-AIA the applicant regards as the invention.
Newly amended claim 1 recites the limitation “composition comprising at least one oxidizing agent that oxidizes a pathogen” and further recites the limitation “composition is comprised of at least one peroxide as the at least one oxidizing agent” that is not reasonably clear. In the present case, it is unclear what “oxidizing agent” should be included into the claimed product. This limitation was interpreted as best understood as “composition comprising at least peroxide that oxidizes a pathogen”. Similar is applied to new claim 27. Clarification is required.
Newly amended claim 1 recites the limitation/step “propagation of the at least one oxidizing agent to bee colonies via trophallaxis” that is unclear. In the present case, it is noted that the term “trophallaxis” is understood as the direct transfer of fluid and food (excreted, secreted or regurgitated) between individuals typically through mouth-to-mouth (stomodeal) or anus-to-mouth (proctodeal) feeding (see Wikipedia). The term/step “propagation” is not defined by the instant specification. Therefore, it is not reasonably clear what the step “propagation … via trophallaxis” does imply. Clarification is required.
Claims 3, 5-17, 20-26 are rejected as being dependent on rejected independent claim 1 and failing to cure the defect.
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.
Claims 1, 3, 5-17, 20-27 are rejected under 35 U.S.C. 103 as being unpatentable over Schmid, AT163656B (cited in IDS) and Stamets, US 2018/0243356A1 (cited in IDS), in view of Becker, WO 2018/160821 A1 (cited in IDS).
Schmid teaches a method of reducing pathogen infections in bees comprising of feeding bees a composition comprising at least one oxidizing agent such as hydrogen peroxide (Claim 1; Description, Para. 1-2, 5, 10; Example, as applied to claims 1, 3, 27). Schmid teaches that said compositions are effective against such pathogen infection/parasite as Nosema apis Zander, i.e., fungus that forms persistent forms/spores (Description, Para. 1-3; Example as applied to claims 10-11, 13, 16). Schmid further teaches that said compositions can be in a liquid form (Example as applied to claim 1) and may include such proteins as pepsin, trypsin (Description, Para. 8 as applied to claim 20); sugar/carbohydrate (example as applied to claims 24, 25).
Stamets teaches compositions that can be used as bee food or bee treatment sprays (Para. 0046), wherein said compositions may include (i) pollen, pollen patties containing soy (Claim 2; Para. 0037, 0057, 0220 as applied to claim 21); (ii) corn syrup solution (Claim 2; Para.0037, 0057, 0058, 0062, 0067, 0156 as applied to claim 23); (iii) sugar syrup, e.g., 50 wr% of sucrose; 50 wt% of water (Para. 0178, 0213, 0214 as applied to claim 22). Stamets teaches that said compositions can be incorporated into sticky strips applied to beehives (Para. 0055 as applied to claim 1, 26, 27).
The cited prior art does not teach the compositions comprising “oxidizing agent activator” (claims 5-7), thickening agents (claim 8, 9); and also does not teach the compositions effective against the pathogens as disclosed in claims 12, 14, 15, 17.
Becker teaches methods for the prevention and/or treatment of diseases in honey bees and honey beehives, i.e., the diseases arising from such pathogens as bacteria, viruses, fungi, by treating a beeswax and/or beehive or bee keeping equipment surface with compositions that include (Abstract; Field of Invention):
(i) at least one oxidizing agent, e.g., hydrogen peroxide (Abstract; Summary of Invention, Page 6, Lns. 15-22 as applied to claims 1, 3), wherein the composition may include 0.1-70 wt%, 1-15 wr%, or 1-8 wt % of peroxide (Page 10, Lns. 21-23 as applied to claim 1);
(ii) at least one oxidizing agent activator selected from the group consisting of metal-containing peroxide activators, carbonate salts and combinations thereof (Abstract; Page 7, Lns. 5-8 as applied to claims 5, 6), wherein the composition may include 0.001-20 wt% or 0.001-5 wt% of peroxide activator" (Page 7, Lns. 9-11 as applied to claim 7);
(iii) at least one viscosifying agent and/or gelling agent (Abstract; Page 9, Lns. 15-16 as applied to claim 8), wherein the composition may include 0.01-10 wt% or 0.1-5 wt% of viscosifying agent and/or gelling agent (Page 9, Lns. 17-19 as applied to claim 9).
Becker teaches that said method is effective against the pathogens responsible for (i) bacterial diseases selected from the group consisting of American foulbrood, and European foulbrood; fungal diseases selected from the group consisting of Chalkbrood, Stonebrood, and Nosema; and viral diseases selected from the group consisting of Cripaviridae, Chronic bee paralysis virus, Dicistroviridae, Acute bee paralysis virus, Israeli acute paralysis virus, Kashmir bee virus, Black queen cell virus, Cloudy wing virus, Sacbrood virus; Iflaviridae - Deformed wing virus, Kakugo virus; Iridoviridae - Invertebrate iridescent virus type 6, Secoviridae - Tobacco ringspot virus, and Lake Sinai virus (Page 11, Ln. 23 – Page 12, Ln. as applied to claims 10-11).
Becker teaches that the pathogens can be: (i) bacteria such as Melissococcus plutonius, Paenibacillus larvae, Spiroplasma apis, S. melliferum, Pseudomonas aeruginosa, Achromobacter euridice, Enterococcus faecalis, Paenibacillus alvei, and Brevibacillus laterosporus (Page 12, Lns. 3-6 as applied to claim 12); (ii) fungi such as Nosema apis, Nosema ceranae, Ascosphaera apis, and Aspergillus spp. (Page 12, Lns. 7-8 as applied to claim 13); (iii) a virus such as Israeli acute paralysis virus, acute bee paralysis virus, Kashmir bee virus, black queen cell virus, deformed wing virus/Kakugo virus, Varroa destructor virus, sacbrood virus slow bee paralysis virus, chronic bee paralysis virus and Lake Sinai virus (Page 12, Lns. 9-12 as applied to claims 14, 15); and (iv) the bacteria spores or fungi spores (Page 12, Lns.13-14 as applied to claim 16).
Becker teaches that said compositions may be used to treat against bacterial, viruses, fungi, protozoa and mite infestation (Page 6, Lns. 4-7), and specifically teaches that one of the most important pests worldwide is Varroa destructor (varroa mite) that is an external parasitic mite that attacks the honey bees Apis cerana and Apis mellifera (Page 3, Lns. 23-30 as applied to claim 17).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to try/include peroxide activator as taught by Becker into the compositions as taught by Schmid and Stamets, because it is prima facie obvious to combine compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a new composition to be used for the very same purpose. (MPEP 2144.06). In the present case, the Schmid and Stamens teach compositions that can be used for feeding bees, allow reducing pathogen infections in bees, and may include at least one oxidizing agent such as hydrogen peroxide, and Becker teaches compositions that include oxidizing agent/hydrogen peroxide in a combination with peroxide activator, wherein said compositions allow protecting honey bees from a large variety of pathogens.
Response to Arguments
Applicant's arguments, filed 09/09/2025, have been fully considered, but were not found to be persuasive for the reasons set forth above. Additional examiner’s comments are set forth next.
In response to applicant's arguments against the references individually, it should be noted that one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1323, 76 USPQ2d 1662, 1685 (Fed. Cir. 2005) (“One of ordinary skill in the art need not see the identical problem addressed in a prior art reference to be motivated to apply its teachings.”); In re Linter, 458 F.2d 1013, 173 USPQ 560 (CCPA 1972); In re Dillon, 919 F.2d 688, 16 USPQ2d 1897 (Fed. Cir. 1990), cert. denied, 500 U.S. 904 (1991). Further, it has been held that a prior art reference must either be in the field of applicant’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the applicant was concerned, in order to be relied upon as a basis for rejection of the claimed invention. In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In the present case,
All cited references are reasonably drawn to the same field of endeavor that is the methods/compositions for reducing pathogen infection in bees.
Schmid and Stamens teach compositions that can be used for feeding bees, allow reducing pathogen infections in bees, and may include at least one oxidizing agent such as hydrogen peroxide.
Becker teaches compositions that include oxidizing agent/hydrogen peroxide in a combination with peroxide activator, wherein said compositions allow protecting honey bees from a large variety of pathogens.
Therefore, it is the examiner’s positions that the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made/filed, because every element of the invention has been collectively taught by the combined teachings of the references. To this point, it is noted that the Supreme Court decided (KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007)) that:
the obviousness analysis needs not seek out precise teachings directed to the subject matter of the challenged claim and can take into account the inferences and creative steps that one of ordinary skill in the art would employ.
the obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion and motivation, or by overemphasis on the importance of published articles and the explicit content of issued patents.
it is error to look only the problem the patentee was trying to solve. Any need or problem known in the field of endeavor at the time of invention and addressed by the prior art can provide a reason for combining the elements in the manner claimed.
it is error to assume that one of ordinary skill in the art in attempting to solve a problem will be led only to those elements of prior art designed to solve the same problem. Common sense teaches that familiar items may have obvious uses beyond their primary purposes, and in many cases one of ordinary skill in the art will be able to fit the teachings of multiple patents together like pieces of a puzzle (one of ordinary skill in the art is not automaton).
it is error to assume that a patent claim cannot be proved obvious merely by showing that the combination of elements was “obvious to try”.
Applicant is advised to clarify the structure of compositions to be used in the claimed method, and clearly point out the patentable novelty, which the applicant thinks the claims present in view of the state of the art disclosed by the references cited, to place the application in condition for allowance.
Conclusion
No claim is allowed at this time.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to OLGA V. TCHERKASSKAYA whose telephone number is (571)270-3672. The examiner can normally be reached 9 am - 6 pm, Monday - Friday.
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/OLGA V. TCHERKASSKAYA/
Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615