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 .
Detailed Action
Status of Application
1. Receipt of the Request for Continued Examination (RCE) under 37 C.F.R. 1.114, the Amendment and Applicants’ Arguments/Remarks, all filed 19 June 2026 are acknowledged.
Claims 1-4, 6-12, 14-17, 19-20, and 22-23 are currently pending. Claims 5, 13, 18, 21, and 24 are cancelled. Claims 20 and 22-23 were previously withdrawn. Claims 1, 16-17 and 19 are amended. Claims 1-4, 6-12, 14-17, and 19 are examined on the merits within.
Continued Examination Under 37 C.F.R. 1.114
2. 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 19 June 2026 has been entered.
New Objections
Claim Objections
3. Claim 1 is objected to because of the following informalities: please remove “herein after”. Appropriate correction is required.
New Rejections
Claim Rejections – 35 U.S.C. 112(b)
4. 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.
5. Claims 2, 4, 6 and 7 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.
6. Claim 2 recites the limitation "the at least one monocarboxylic acid having 1 to 5 carbon atoms or a salt, or mixtures thereof" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 3 depends from claim 2 and should be amended accordingly if the phrase “at least one monocarboxylic acid having 1 to 5 carbon atoms or a salt, or mixtures thereof” is removed.
7. Claim 4 recites the limitation "the monocarboxylic acid having 1 to 5 carbon atoms or a salt, or mixtures thereof" in line 2. There is insufficient antecedent basis for this limitation in the claim.
8. Claim 6 recites the limitation "the at least one medium-chain fatty acid comprising from 6 to 12 carbon atoms or derivatives thereof" in line 2. There is insufficient antecedent basis for this limitation in the claim.
9. Claim 7 recites the limitation "the medium-chain fatty acid comprising from 6 to 12 carbon atoms or derivatives thereof" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections – 35 U.S.C. 112(d)
10. 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.
11. Claims 2, 4, 6, and 10-12 are 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.
12. Claim 2 recites “wherein the at least one monocarboxylic acid having 1 to 5 carbon atoms or a salt, or mixtures thereof, is selected from the group consisting of formic acid, acetic acid, propionic acid, butyric acid, valeric acid, isobutyric acid, iso-valeric acid and mixtures thereof.” However, claim 1 recites “at least one monocarboxylic acid selected from formic acid, propionic acid, or a salt or mixtures thereof”. 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.
13. Claim 4 recites “wherein the monocarboxylic acid having 1 to 5 carbon atoms or a salt, or mixtures thereof, relative to the total weight of the composition (C), ranges from 70.00 to 80.00 wt. %”. However, claim 1 recites “from 70.00 to 80.00% by weight of at least one monocarboxylic acid selected from formic acid, propionic acid or a salt, or mixtures thereof”. 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.
14. Claim 6 recites “wherein the at least one medium-chain fatty acid comprising from 6 to 12 carbon atoms or derivatives thereof, is caprylic acid (C8), capric acid (C10) or mixture thereof”. However, claim 1 recites “at least one medium-chain fatty acid selected from caprylic acid (C8), capric acid (C10) or mixtures thereof”. 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.
15. Claim 10 recites “wherein the amount of the at least one monoterpene relative to the total weight of the composition (C), ranges from 0.30 to 0.80 wt.%.” However, claim 1 recites “from 0.30 to 0.80 % by weight of at least one monoterpene”. 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.
16. Claim 11 recites “further comprises water in an amount of less than 10.00 wt.%”. However, claim 1 recites “wherein water, if present, is in an amount of less than 1.00 wt.%”. 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.
17. Claim 12 recites “further comprises water in an amount of less than 5.00 wt.%”. However, claim 1 recites “wherein water, if present, is in an amount of less than 1.00 wt.%”. 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.
Modified Rejections
Claim Rejections – 35 U.S.C. 103
18. 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.
19. Claim(s) 1-4, 6-12, 14-17, and 19 is/are again rejected under 35 U.S.C. 103 as being unpatentable over Richardson et al. (WO2011/017367) in view of Coleman (U.S. Patent Application Publication No. 2004/0266852).
Regarding instant claims 1-4, 7, 10-12, and 14-15, Richardson et al. teach a composition that can comprise 1 to 100% organic acids. Of the organic acid compounds, 2 to 20% is pelargonic acid and the remaining 98 to 80% is acetic acid or propionic acid. The composition may contain 0 to 20% terpenes, preferably 0.5 to 10%. See page 7. The composition comprises 0 to 20% surfactant, preferably 0.5 to 5%. See page 7. The surfactant can be non-ionic. See page 7. The composition may contain 0 to 99% water. See page 7.
Regarding instant claims 8-9, preferred terpenes are allyl disulfide, thymol, citral, eugenol, carvacrol, and carvone, or mixtures thereof. See page 6.
Regarding instant claims 16-17 and 19, examples of surfactants include polysorbate 20, polysorbate 80, polysorbate 40, polysorbate 60, polyglyceryl ester, polyglyceryl monooleate, decaglyceryl monocaprylate, propylene glycol dicaprilate, triglycerol monostearate, Tween 20, Span 20, Span 40, Span 60, Span 80, ethoxylated castor oil surfactants or mixtures thereof. See page 7. Glyceryl polyethylene glycol ricinolate is an ethoxylated castor oil.
Richardson et al. do not teach caprylic or capric acid as the fatty acid.
Coleman teaches fungicide compositions including one or more fatty acids and one or more organic acids different from the fatty acid. The organic acid functions as a potent synergist for the fatty acid as a fungicide. See abstract. Fatty acids include caprylic acid, capric acid, and pelargonic acid. See paragraph [0018]. Organic acids include trichloroacetic and oxalacetic acid. See paragraph [0021]. The composition can additionally comprise emulsifiers, adjuvants, surfactants, and diluents. See abstract.
It would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to substitute one fatty acid for another to yield predictable results because Coleman teaches the functional equivalency of caprylic acid, capric acid, and pelargonic acid in formulations comprising acetic acids. It would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to substitute one ethoxylated castor oil for another because glyceryl polyethylene glycol ricinolate is an ethoxylated castor oil.
Response to Arguments
Applicants’ arguments filed 19 June 2026 have been fully considered but they are not persuasive.
20. Applicant argued, “Richardson does not teach caprylic acid or capric acid in amount of 12 to 18 % together with 0.3-0.8% monoterpene, 3-6% nonionic surfactant and less than 1% water. Coleman does not cure the deficiencies of Richardson. Coleman teaches that caprylic acid exhibited greater fungicidal activity than pelargonic acid and thus the two are not functional equivalents. Richardson compositions do not achieve satisfactory results in poultry feed showing the technical unpredictability of the feed-matrix problem. Coleman is directed to plant fungicides and does not address technical issues implicated by feed use.”
In response to applicants’ arguments, Richardson teaches 2 to 20% pelargonic acid and the remaining 98 to 80% is acetic acid or propionic acid, i.e., 80% propionic acid. The composition may contain 0 to 20% terpenes, preferably 0.5 to 10%. Preferred terpenes are thymol, citral, eugenol, carvacrol, and carvone, or mixtures thereof. This reads on 0.3-.8% monoterpene. The composition may contain 0 to 99% water, which reads on less than 1 %. The composition comprises 0 to 20% surfactant, preferably 0.5 to 5%. The surfactant may be non-ionic. This reads on 3-6% non-ionic surfactant. Each of the ranges taught by Richardson overlap those that are instantly claimed, thus, based on the embodiments taught by Richardson, it would have been obvious to arrive at the claimed combination of ingredients in the same amounts. Since the prior art teaches the same combination of ingredients, it should function in the same manner, i.e., single-phase and miscible liquid. The prior art of Coleman was provided to make obvious substitution of the caprylic and/or capric acid for pelargonic acid as simple substitution of functional equivalents. Coleman does not need to teach each and every limitation as long as the combination of references make obvious the claimed invention, in this case the substitution of one fatty acid for another. The amounts of fatty acids are taught by Richardson. The equivalency is taught by Coleman. With regards to the greater fungicidal activity, the two are still functional equivalents because they are both fungicidal agents, thus one can be substituted for the other. However, the increased effectiveness provides further motivation to use the caprylic acid over the pelargonic acid.
In response to applicants’ argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., poultry feed) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). In response to applicants’ argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). It is not through hindsight but simple substitution of functional equivalents to provide antimicrobial activity.
Thus this rejection is maintained.
21. Applicants argued, “adding only 0.36% of thymol or carvacrol to the claimed C8/C10 acid system materially improved in-feed antimicrobial performance and low-temperature handling. Dramatic improvement in uniform corrosion rate was observed with the nearly anhydrous composition.”
In response to applicants’ arguments, the low amount of monoterpene and water are taught as embodiments of Richardson. Substitution of one fatty acid for another should yield the same results as observed since all other embodiments are taught by Richardson. In addition, the claim is directed to caprylic acid, capric acid, or mixtures thereof whereas the examples comprise a combination of caprylic and capric acid. Thus the examples are more specific and the claims are not commensurate in scope.
Thus this rejection is maintained.
Conclusion
22. No claims are allowed.
23. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JESSICA WORSHAM whose telephone number is (571)270-7434. The examiner can normally be reached Monday-Friday (8-5).
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/JESSICA WORSHAM/Primary Examiner, Art Unit 1615
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