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
Claims 1, 6, 7, 9-13, 15-20, 23, 25, 27, 29 and 32 are pending in the Claim Set filed 10-24-2025.
Applicants elected species is: 2, 4-dihydroxybenzoic acid (2,4-DHB acid), also known as beta-resorcylic Acid.
Claims 12-20, 23, 25, 27, 29 and 32 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention.
Claims 2-5, 8, 14, 21, 22, 24, 26, 28, 30, 31 and 33-38 are canceled.
Herein, claims 1, 6, 7 and 9-11 are for examination to the extent that they read on the elected species.
New Grounds of Rejection necessitated by claim amendments
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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
Claims 1, 6, 7 and 9-11 are rejected under 35 U.S.C. 103 as being unpatentable over Goring et al (USP3135594, cited in IDS filed 9/21/22022) [Goring] in view of Wagle et al (Application of beta-Resorcylic Acid as Potential Antimicrobial Feed Additive to Reduce Campylobacter Colonization in Broiler Chickens, Frontiers in Microbiology, p.1, April 2017, of record).
Claim Interpretation
Specification at page 4, lines 1-14 states the following:
As used herein, the term "complex" or "complex substance" refers to chelates, coordination complexes, and salts of nitrapyrin, wherein nitrapyrin associates with functional groups of polyanion(s) in a covalent (i.e., bond forming) or non-covalent (i.e., ionic) manner. In a complex a central moiety or ion (e.g., nitrapyrin) associates with a surrounding array of bound molecules or ions known as ligands or complexing agents (e.g., polyanion(s)). The central moiety binds to or associates with several donor atoms of the ligand, wherein the donor atoms can be the same type of atom or can be a different type of atom Ligands or complexing agents bound to the central moiety through several of the ligand's donor atoms forming multiple bonds (i.e., 2, 3, 4 or even 6 bonds) is referred to a polydentate ligand. Complexes with polydentate ligands are called chelates. Typically, complexes of central moieties with ligands are increasingly more soluble than the central moiety by itself because the ligand(s) that surround(s) the central moiety do not dissociate from the central moiety once in solution and solvates the central moiety thereby promoting its solubility.
Herein, nitrapyrin-monoacid complex as recited in instant claims is interpreted to comprise salts of nitrapyrin. Particularly, the nitrapyrin salt of 2, 4-dihydroxybenzoic acid (monoacid: elected species).
Regarding claims 1, 6, 7 and 10,
Goring teaches nitrapyrin (2-chloro-6-(trichloromethyl)pyridine) and mineral salts thereof, for example, e.g., hydrochlorides, sulfates and phosphates, for treating soil to suppress the nitrification of ammonium thereof (i.e., nitrification inhibitor), whereby conserving the nitrogen in soil (Title; col. 1, ln;1-14; col.3, lns.42-75; col.5, Ins, 14-75; cols.13-15, Examples 13-16; claims 1-3, 8-12; See entire document).
Goring differs from the claims in that the document does not teach a nitrapyrin-monoacid complex comprising nitrapyrin complexed with a monocarboxylic acid (i.e., an organic acid: -CO2H) wherein the monoacid is 2,4-dihydroxybenzoic acid (2,4-DHB acid).
However, Wagle cures the deficiency.
Wagle teaches 2.4-dihydroxybenzoic acid is a phytophenolic compound that protects plants against pathogens (p.2, left col., last paragraph).
Wagle teaches 2.4-dihydroxybenzoic acid (beta-resorcylic Acid) is effective in reducing major foodborne pathogens, including Salmonella, Listeria monocytogenes (contaminate plants, e.g., leafy greens) and Escherichia coli O157:H7 in food products (p.2, right col. top paragraph).
Thus, one skilled in the art would recognize the major benefit of providing 2.4-dihydroxybenzoic as a carboxylic monoacid to complex with nitrapyrin (2-chloro-6-(trichloromethyl)pyridine) as taught by Goring and Wagle, as a whole. Particularly, the nitrapyrin salt of 2, 4-dihydroxybenzoic acid (monoacid).
Accordingly, one skilled in the art would have been motivated to include the 2,4-dihydroxybenzoic acid in the composition as taught by Goring wherein a nitrapyrin monoacid complex with 2.4-dihydroxybenzoic is provided that would protect the fertilizer from pathogens having a reasonable expectation of success. Moreover, 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 (In re Kahn, 78 USPQ2d 1329, 1336, Federal Circuit 2006).
Regarding claim 9,
The combination of the teachings of Goring and Wagle, as a whole, would necessarily provide a nitrapyrin-monoacid complex, e.g., nitrapyrin- 2.4-dihydroxybenzoic acid (beta-resorcylic Acid), wherein the nitrapyrin-monoacid complex has a lower vapor pressure compared to the vapor pressure of a nitrapyrin that is not complexed with a monoacid. The property(s) would be the natural result of the combination of the prior art elements. Inherency is appropriate in an obviousness analysis "when the limitation at issue is the 'natural result' of the combination of prior art elements." PAR Pharm., Inc. v. TWI Pharms., Inc., 773 F.3d 1186, 1195 (Fed. Cir. 2014) (quoting In re Oelrich, 666 F.2d 578,581 (CCPA 1981)). Moreover, mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979).
Regarding claim 11,
Wagle teaches using the beta-resorcylic acid at 0.25, 0.5, or 1% by weight (Abstract; Fig.2, p.4; See entire document) The (2-chloro-6-(trichloromethyl)pyridine) compound, e.g., nitrapyrin, in the Goring reference is from 0.01-0.25% by weight (col.5, lns.69-70). Therefore, the combination of the teachings of these references makes prima facie obvious at least a weight ratio of 0.25 and 0.25% or a 1:1 ratio of nitrapyrin and monoacid, of which lies inside the claimed ranges. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 541 F.2d 257, 191 USPQ 90 (CCPA 1976); MPEP 2144.05.
Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to provide instantly claimed antimicrobial composition and one of ordinary skill would have had a reasonable expectation of success in producing the claimed invention. Therefore, in the absence of evidence to the contrary, the claimed invention as a whole would have been obvious to one of ordinary skill as evidenced by Goring and Wagle, as a whole.
Response to Arguments
Applicants argue that a skilled artisan would not have looked at the teachings of Wagle, which are directed towards solving a completely different problem. The teachings of Wagle as a whole are directed towards solving the problem of treating foodborne pathogens when they are ingested by humans. Wagle describes throughout its disclosure a study of investigating the efficacy of in-feed supplementation of beta-resorcyclic acid for reducing Campylobacter (a foodborne pathogen) colonization in broiler chickens. It would be clear that Wagle as a whole is directed towards the field of foodborne pathogens, which is very different from the field of agricultural formulations. Wagle' s teachings as a whole is in a completely different field of endeavor.
Applicant’s arguments have been fully considered but they are not persuasive, because instant claims are product (compound) claims directed to a nitrapyrin-monoacid acid complex. Thus, a field of endeavor is not limited to any particular area of application. Moreover, Goring teaches nitrapyrin (2-chloro-6-(trichloromethyl)pyridine) and is complex with mineral salts, for example, e.g., hydrochlorides, sulfates and phosphates). Thus, one skilled in the art would have recognized the additional advantage of complexing nitrapyrin with an organic monoacid 2.4-dihydroxybenzoic acid (beta-Resorcylic Acid), that is a well-established phytophenolic compound (i.e., agent that is protective agent against pathogens) to further provide antimicrobial protection to a fertilizer that is applied to a variety of agricultural products intended for human consumption having a reasonable expectation of success. The test for obviousness is not whether 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. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Moreover, 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 (In re Kahn, 78 USPQ2d 1329, 1336, Federal Circuit 2006).
Conclusions
No claim(s) are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Thurman Wheeler whose telephone number is (571)-270-1307. The examiner can normally be reached Monday-Friday 11:00am-5:00pm EST.
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/T.W./ Examiner, Art Unit 1619
/SARAH ALAWADI/ Primary Examiner, Art Unit 1619