DETAILED ACTION
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 included in the prosecution are claims 1, 2 and 4-11.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 on 04/15/2026 has been entered.
Applicants' arguments, filed 04/15/2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
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.
1. Claims 1 and 4-11 are rejected under 35 U.S.C. 103 as being unpatentable over Sugiura (US 2019/0045793, Feb. 14, 2019) (of record) in view of Tatsuhiko et al. (JP 3829640 B, Oct. 4, 2006) (IDS reference) (hereinafter Tatsuhiko).
Sugiura discloses an antiviral agent that includes an inorganic solid acid. The inorganic solid acid preferably includes an inorganic phosphoric acid compound, an inorganic silicic acid compound, or an inorganic oxide (abstract). Suitable inorganic solid acids include phosphoric acid compounds of titanium group elements such as titanium phosphate (¶ [0041]). The antiviral agent can contain silver, copper, or both. The antiviral agent may be a mixture of silver or copper, or compounds thereof, with an inorganic solid acid containing no silver or copper (¶ [0050]). The concentration of the antiviral agent is preferably from 0.5 to 50% by mass (¶ [0063]). Influenza viruses and the like can be inactivated by using the antiviral agent (¶ [0156]). Suitable influenza viruses include influenza A virus (i.e., virus belonging to the family Orthomyxoviridae) (¶ [0099]). To formulate an α-type silver copper zirconium phosphate, a 15% aqueous zirconium oxychloride solution was added to a 75% aqueous phosphoric acid solution, and the mixed solution was aged at 100°C for 12 hours. Thereafter, the obtained precipitate was washed with water and recovered. Next, this precipitate was stirred in an aqueous silver nitrate and copper nitrate solution at 100°C for 2 hours. Thereafter, the obtained precipitate was filtered, washed with water, dried, and crushed to obtain an α-type silver copper zirconium phosphate powder (¶¶¶ [0110], [0111], and [0115]). The antiviral agent can be used in combination with antibacterial agents (¶ [0060]).
Sugiura differs from the instant claims insofar as not disclosing wherein the antiviral agent comprises a titanium phosphate represented by Ti(OH)x(PO4)y(HPO4)z(H2PO4)l(OR)m.
However, Tatsuhiko discloses an antibacterial agent comprising a titanium phosphate-based compound or a condensate thereof with the formula: Ti(OH)x(PO4)y(HPO4)z(H2PO4)l(OR)m, wherein R is an alkyl group having 1 to 4 carbon atoms, x = 0, 1, 2, or 3, y = 0, 1, 2, 3 or 4, z = 0, 1, 2, 3, or 4, l = 0, 1, 2, 3, or 4, m = 0, 1, 2, or 3, x+3y+2z+l+m = 4, and y+z+l is always 1 or more (claim 1).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Sugiura discloses wherein the antiviral agent comprises titanium phosphate, which may be used in combination with an antibacterial agent. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated the titanium phosphate of Tatsuhiko into the antiviral agent of Sugiura since it is a known and effective titanium phosphate that also has antibacterial properties as taught by Tatsuhiko.
In regards to instant claim 1 reciting wherein the antiviral agent comprises both the titanium phosphate and the inorganic silicic acid compound, since Sugiura discloses the use of various inorganic solid acids individually, the use of the individual species in combination would have been obvious since it is prima facie obvious to combine two compositions, each of which is taught by Sugiura to be useful for the 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.
In regards to instant claim 6 reciting wherein the antiviral agent is used for cosmetics, disinfectants, or detergents, this is merely a recitation of the intended use of the antiviral agent. Since a disinfectant is an agent that destroys pathogens such as bacteria, viruses, and fungi and the antiviral agent destroys viruses, the antiviral agent is capable of being used as a disinfectant, whether the prior art discloses such use or not.
In regards to instant claim 7 reciting mixing the silicic acid compound, the silver compound, and the copper compound in this order, in a liquid containing the titanium phosphate compound, Sugiura does not disclose mixing in this order but does disclose mixing the compounds together, as discussed above. Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. See MPEP 2144.04(IV)(C). Therefore, the claim is obvious even though Sugiura does not disclose the exact order of mixing.
2. Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Sugiura (US 2019/0045793, Feb. 14, 2019) (of record) in view of Tatsuhiko et al. (JP 3829640 B, Oct. 4, 2006) (IDS reference) (hereinafter Tatsuhiko), and further in view of Kiani (WO 2018/203879 A1, Nov. 8, 2018).
The teachings of Sugiura and Tatsuhiko are discussed above. Sugiura and Tatsuhiko do not specifically teach wherein the antiviral agent comprises silver nitrate.
However, Kiani discloses an antiviral composition comprising a silver-containing substance such as silver nitrate (abstract).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. As discussed above, Sugiura discloses wherein the antiviral agent may contain a silver compound. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated silver nitrate into the antiviral agent of Sugiura since it is a known and effective silver compound suitable for an antiviral composition as taught by Kiani.
Response to Arguments
Applicant argues that none of the antiviral agents exemplified in Sugiura includes titanium phosphate.
The Examiner does not find Applicant’s argument to be persuasive. A prior art reference is evaluated for all that it reasonably suggests and is not limited to working examples. As discussed above, Sugiura discloses an antiviral agent that includes an inorganic solid acid (abstract). Suitable inorganic solid acids include phosphoric acid compounds of titanium group elements such as titanium phosphate (¶ [0041]). Therefore, it would have been obvious to one of ordinary skill in the art for Sugiura’s antiviral agent to comprise titanium phosphate and Applicant’s argument is unpersuasive.
Applicant argues that there is no teaching or suggestion in Tatsuhiko that would direct one of ordinary skill in the art with a reasonable expectation that titanium phosphate compounds would be effective against viruses.
The Examiner does not find Applicant’s argument to be persuasive. As this is a 103 obviousness rejection, no one piece of prior art is required to teach each and every claim limitation. As discussed in the rejection, Suguira discloses wherein titanium phosphate is an antiviral agent. As such, it would have been obvious to one of ordinary skill in the art that titanium phosphate compounds would be effective against viruses and Applicant’s argument is unpersuasive.
Applicant argues that the antiviral activity of the inorganic silicate is compound-specific and the antiviral activity observed in Sugiura with amorphous magnesium silicate cannot be extrapolated to other inorganic silicate compounds, such as crystalline magnesium silicate and crystalline silver-copper aluminum silicate, both were shown to have no antiviral activity in Sugirua.
The Examiner does not find Applicant’s argument to be persuasive. Tatsuhiko does not teach wherein the titanium phosphate is crystalline. Therefore, although Sugirua teaches that some crystalline forms have no antiviral activity, since Tatsuhiko does not teach wherein the titanium phosphate is crystalline, one of ordinary skill in the art would not have thought that the titanium phosphate of Tatsuhiko would not be antiviral. Furthermore, obviousness does not require absolute predictability. See MPEP 2143.02(II). Sugirua discloses in paragraph [0026] wherein the antiviral effect depends on acid site concentration. Sugirua teaches in the examples measuring the acid site concentration of various compounds to determine which compounds have antiviral activity. Thus, since Sugirua teaches wherein titanium phosphate is an antiviral agent, there is some predictability of using other titanium phosphate compounds and it would have been within the skills of one of ordinary skill in the art to be able to determine whether the titanium phosphate of Tatsuhiko has an acid site concentration sufficient to make it antiviral. Applicant has not shown wherein the titanium phosphate of Tatsuhiko is not antiviral. As such, Applicant’s argument is unpersuasive.
Applicant argues that combining silicate compounds with specific components, such as a titanium phosphate compound, a silver compound, and a copper compound, results in an antiviral agent effective against specific viruses.
The Examiner does not find Applicant’s argument to be persuasive. Applicant has not shown wherein the claimed combination is critical. Applicant has not provided any comparative examples showing wherein missing one of the claimed ingredients would not have the claimed antiviral effect. As such, Applicant’s argument is unpersuasive.
Applicant argues that as demonstrated in the present specification and the WAKAMA Declaration, the antiviral agents of claim 1 exhibit antiviral activity specifically against viruses belonged to the Caliciviridae family, the Orthomyxoviridae family, the Coronaviridae family, or the Adenoviridae family. Such specific antiviral effects cannot be derived or expected from the teachings of Sugiura and Tatsuhiko.
The Examiner does not find Applicant’s argument to be persuasive. It was known in the art that not all antivirals treat all viruses. As evidenced by Adalja et al. (Broad-Spectrum Antiviral Agents: A Crucial Pandemic Tool, 2019), the antiviral agents that are currently available for use are best thought of as highly-targeted against a specific virus, or in some cases, members of a viral family. For example, antivirals such as acyclovir, valacyclovir, and famciclovir all are utilized against various herpes family viruses such as herpes simplex virus 1 (HSV-1), HSV-2, and varicella-zoster virus (VZV) but the extent of their broad-spectrum nature does not even carry over to fellow herpes virus, cyto-megalovirus (CMV) (page 467). Thus, one of ordinary skill in the art would have expect the claimed composition to not exhibit antiviral effects against all viruses. As discussed in the rejection, Sugiura teaches wherein titanium phosphate is an antiviral agent suitable for inactivating influenza A virus (i.e., virus belonging to the family Orthomyxoviridae). Therefore, it would have been obvious to one of ordinary skill in the art to have tried the titanium phosphate of Tatsuhiko for inactivating influenza A virus (i.e., virus belonging to the family Orthomyxoviridae) since titanium phosphate has antiviral activity. Applicant has not shown wherein this would not have been obvious to one of ordinary skill in the art. Therefore, having the titanium phosphate of Tatsuhiko treat influenza A virus (i.e., virus belonging to the family Orthomyxoviridae) would have been obvious and Applicant’s argument is unpersuasive.
Response to Arguments
Declarant’s arguments have been addressed above.
Conclusion
Claims 1, 2 and 4-11 are rejected.
No claims are allowed.
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/TRACY LIU/Primary Examiner, Art Unit 1614
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