DETAILED ACTION
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 . 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.
Election/Restrictions
Applicant’s election without traverse of Group II (claims 44-52) and the species of fatty acids, polyphenol, and pyrethroid in the reply filed on 02 September 2026 is acknowledged. Claims 33-43 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Claims 47-52 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species of pyrethroid, there being no allowable generic or linking claim.
Claim Rejections - 35 USC § 112 - Indefiniteness
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.
Claims 44-46 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention. The fatty acids recited by the rejected claims include, as one option, “C(16:0w9)”. This option is not definite. The terminology is the first number (16 here) is the length of the carbon chain, the second number (“0” here) the number of unsaturated bonds present, and then if there is an unsaturated bond present, it’s position in the carbon chain. Since this option has zero double bonds, the specified location does not make sense.
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 44-46 are rejected under 35 U.S.C. 103 as being unpatentable over Moores (US Patent Application Publication 2018/0192646) in view of Enan (US Patent Application Publication 2011/0124502) and Jones (US Patent Application Publication 2010/0227010).
Moores discloses the use of C6 to C24 monounsaturated acids in pesticide formulations (abstract). These act as synergists to a variety of pesticides (paragraph [13]), including deltamethrin (paragraph [16]). And the unsaturated acids taught include gondoic acid (which is C(20:1w11) (paragraphs [42-44]). Other monounsaturated C20 fatty acids are also suggested (id.).
Moores does not suggest the inclusion of the polyphenol tannic acid or the protease papain.
Enan discloses pest controlling compositions which include two agents. One such agent is deltamethrin (paragraph [86]), and the taught second agent includes tannic acid (paragraph [70]).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art at the time of filing to have included both tannic acid and deltamethrin in the same composition. Both are suggested for the same use (as taught by Enan). And generally, it is prima facie obvious to combine two agents, each of which is taught by the prior art to be useful for same purpose, in order to form a third composition to be used for the very same purpose. The idea for combining them flows logically from their having been individually taught in the prior art. See MPEP 2144.06.
Moores and Enan do not suggest the inclusion of the protease papain.
Jones discloses pesticidal compositions (abstract). And Jones teaches that the addition of such an enzyme aids in the control of allergens (paragraph [155-158]).
Therefore, it would have been prima facie obvious to one of ordinary skill in the art at the time of filing to have included papain into the composition taught by Moores and Enan as it would provide the benefit taught by Jones. Thus, instant claim 44 is considered prima facie obvious.
Instant claim 45 further limits the pyrethroid, and the deltamethrin cited above reads upon this limitation.
Instant claim 46 recites amounts for the ingredients. While such amounts are not taught by the cited references, the two concentrations instantly recited are not considered patentable. Generally, differences in concentration and tempera-ture will not support the patentability of subject mat-ter 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 dis-cover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05(II)(A).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Brian Gulledge whose telephone number is (571) 270-5756. The examiner can normally be reached Monday - Friday 7am - 4pm.
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/Brian Gulledge/Primary Examiner, Art Unit 1699
