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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 on May 11, 2026, has been entered.
Previous Rejections
Applicant’s arguments, filed May 11, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 Status
Claims 2 – 4, 8 – 10, 16, and 18 have been cancelled.
Claims 1, 5 – 7, 11 - 15, and 17 are examined here-in.
Claim Rejections - 35 USC § 103 (Maintained)
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 non-obviousness.
Claims 1, 5 – 7, 11 – 15, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Guimberteau (US 2020/0306220 A1, of record) in view of Hanai (US 2021/0100247, of record).
Guimberteau teaches a composition that includes a pyrethroid and a macrocyclic lactone, identifying permethrin and moxidectin specifically in amounts of 1-65% w/v 0.05-25% w/v of the composition, respectively (paragraphs 0092, 0093, claims 1 - 5).
Guimberteau specifies activity of pyrethroid and macrocyclic lactone to mosquitoes of the Culex, Aedes, and Anopheles species (paragraphs 0241, 0259, 0262). Guimberteau teaches a single application of pyrethroid and macrocyclic lactone mixture (paragraph 0032), and also discloses residual control or “long acting” effects of the pyrethroid and macrocyclic lactone composition (paragraph 0029, Tables 3 – 6).
Guimberteau does not teach that the composition is a space spray composition, or a method of controlling a mosquito wherein the area in need of pest control is an outdoor area around human habitation and wherein the composition is applied by spraying or soaking. Hanai teaches the missing element of Guimberteau.
Hanai teaches a method to control harmful organisms (such as mosquitoes) which includes applying an insecticide that includes at least one of permethrin, pyrethrum, or moxidectin (paragraphs 0012, 0015, 0041, 0044, 0076, 0079, 0105, 0108, 0172, 0178, claims 1 and 4). Hanai teaches the insecticide may be formulated as an aerosol or fogging agent and applied by spraying (paragraph 0137, 0152). Hanai teaches that the insecticide may be applied to areas such as grasses or lawns (paragraph 0155).
Guimberteau and Hanai’s teachings render instant claims 1, 5 – 7, 11 – 15, and 17 prima facie obvious as combining prior art elements according to known methods to yield predictable results (MPEP 2143(I)(a)). A person of ordinary skill in the art would be motivated to modify Guimberteau’s teaching for a composition with pyrethroid and moxidectin (paragraphs 0092, 0093, claims 1 – 5) with Hanai’s teaching to apply a pesticidal composition as an aerosol or fogging agent in order to treat a larger space, such as a lawn or grassy area (paragraphs 0152, 0155). Furthermore, Hanai’s teachings for permethrin, pyrethrum, and moxidectin suggest a composition with these compounds is suitable to be applied by spraying (paragraphs 0012, 0015, 0041, 0044, 0076, 0079, 0105, 0108, 0137, 0152, 0155). The combination of Guimberteau and Hanai’s teachings is prima facie obvious according to MPEP 2143(I)(a) because the combination of known elements (permethrin, pyrethrum, moxidectin) according to known methods (spraying) yields predictable results (pesticidal activity over an area).
Guimberteau’s teaching for a pesticidal composition with permethrin and moxidectin in amounts of 1-65% w/v and 0.05-25% w/v of the composition, respectively (paragraphs 0092, 0093, claims 1 - 5) with Hanai’s teaching that a pesticidal formulation can be formulated as an aerosol or fogging agent (paragraphs 0137, 0152) reads on instant claim 1. Guimberteau’s teaching to include the compounds in ranges of 1-65% w/v and 0.05 to 25% w/v overlaps on the instantly claimed range of 3.3:1 to 1:1. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(I).
With regards to claims 5, 6, 11, and 12, Guimberteau’s teaching to include the compounds in ranges of 1-65% w/v and 0.05 to 25% w/v (paragraphs 0092, 0093, claims 1 – 5) overlaps on the instantly claimed ranges of 3.3:1 to 1.1:1 (claims 5 and 11) and 3.3:1 to 1.7:1 (claims 6 and 12).
Hanai’s teaching for a method to control harmful organisms (such as mosquitoes) which includes applying an insecticide that includes at least one of permethrin, pyrethrum, or moxidectin (paragraphs 0012, 0015, 0041, 0044, 0076, 0079, 0105, 0108, 0172, 0178, claims 1 and 4) by spraying (paragraph 0137, 0152) to areas such as grasses or lawns (paragraph 0155) reads on instant claim 7. Application of a pesticidal composition to grasses or lawns (paragraph 0155) reads on “an outdoor area around human habitation” as recited in instant claim 7.
Guimberteau’s teaching that pyrethroid and macrocyclic lactone can be used to treat mosquitoes of the Culex, Aedes, and Anopheles genera and species (paragraphs 0241, 0259, 0262) reads on instant claims 13 and 14.
The instant application lists Culex quinquefasciatus as a pyrethroid-resistant species (paragraph 0060), thus Guimberteau’s teaching that pyrethroid and macrocyclic lactone can be used to treat mosquitoes of the Culex, Aedes, and Anopheles genera and species (paragraphs 0241, 0259, 0262) reads on instant claim 15.
Guimberteau’s teaching that a single application of pyrethroid and macrocyclic lactone mixture has residual control or “long acting” effects (paragraphs 0029, 0032, Tables 3 – 6) reads on instant claim 17.
Examiner’s Reply to Attorney Arguments Dated May 11, 2026
Applicant argues that a skilled artisan would not look to Guimberteau when developing a space spray pesticidal composition or method of the present invention because Guimberteau teaches a spot-on/line-on composition for veterinary use (Remarks page 4). The Examiner disagrees because Guimberteau is directed to an insect control composition comprising pyrethroids and moxidectin to target mosquitoes. An insect control composition comprising pyrethroids and moxidectin to target mosquitoes is in the same field of endeavor as the instant application (insect control) and the combination of pyrethroids and moxidectin to target mosquitoes is reasonably pertinent to the problem faced by the inventor, therefore, Guimberteau is analogous art to the claimed invention according to MPEP 2141.01(a). Furthermore, as discussed in the body of the rejection above, a person of ordinary skill in the art would be motivated to modify Guimberteau’s teaching for a composition with pyrethroid and moxidectin (paragraphs 0092, 0093, claims 1 – 5) with Hanai’s teaching to apply a pesticidal composition as an aerosol or fogging agent in order to treat a larger space, such as a lawn or grassy area (paragraphs 0152, 0155). Applicants are reminded that a skilled artisan is not an automaton, but a person having ordinary skill in the art of formulating pesticidal compositions, i.e. a synthetic chemist of PhD, and is capable of fitting teachings of multiple prior art documents together like pieces of a puzzle. See MPEP 2141.03. Therefore, a skilled artisan would be highly capable of combining the teachings of Guimberteau and Hanai to include a pyrethroid and moxidectin in a spray formulation. Since the cited prior art teaches each of the instantly recited limitations, a prima facie case of obviousness is established.
Applicant argues that Guimberteau teaches the ingestion of composition by the pest, which is a different mechanism than contact by an insecticidal composition (Remarks page 4). This argument is not persuasive, because it is settled law that the mechanism of action does not have a bearing on the patentability of the invention if the invention was already known or obvious. Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. See MPEP 2141.02(III).
Applicant argues that a skilled artisan would not be motivated by Guimberteau and Hanai to arrive at the instant invention because “nothing in the prior art teaches killing mosquitoes by contact rather than ingestion of pyrethroids and moxidectin” (Remarks page 5). This argument is not persuasive, because as discussed above, mechanism of action does not have a bearing on the patentability of the invention if the invention was already known or obvious (MPEP 2141.02(III)). Furthermore, although Guimberteau’s rationale for combining moxidectin and pyrethroid may be different than Applicant’s, according to MPEP 2144(iv), rationale different from Applicant’s is permissible.
Furthermore, Applicant alleges unexpected results, stating “Examples 1 and 2 of the Instant Specification demonstrate that application of mixtures of moxidectin with either permethrin or pyrethrum in a wind tunnel result in synergistic control of mosquitoes at ratios from 3.3:1 to 1:1” (Remarks pages 4 and 5).
As noted in the Office Actions dated September 3, 2026, and February 11, 2026, a proper side-by-side comparison to the closest prior art as required by MPEP 716.02(e) does not appear to have been made. Applicant argues that “nothing in the prior art teaches a skilled artisan that these mixtures would synergistically control mosquitoes via contact at the claimed ratios” (Remarks page 5). Furthermore, Applicant does not fully explain the significance of the data in arriving at the conclusion that results are unexpected as required by MPEP 716.01(c)(II) and 716.02(b)(II).
Assuming purely arguendo that a proper side-by-side comparison was made, even then the Examiner would disagree that the alleged synergistic activity of pyrethroid and moxidectin shown by Applicant is unexpected and significant. Examples 1 and 2 of the instant specification compare wind tunnel survivability for mosquitoes with permethrin alone, pyrethrum alone, moxidectin alone, a combination of permethrin and moxidectin, and a combination of pyrethrum and moxidectin, including a calculated ratio of synergism according to the Abbott method (specification pages 21 and 22). For Example 1, only three instances of Abbott “synergism” ratios are reported out of the 16 possible samples that include a combination of claimed actives. Out of the 16 samples, nine have a ratio of 1.0, which corresponds with expected behavior. Therefore, for Example 1, more than half of the samples show expected behavior and less than a quarter show an Abbott ratio corresponding with greater than expected results. For Example 2, five of eight have Abbott ratios greater than 1.0, suggesting greater than expected results. The remaining three of eight have a ratio of less than 1.0, suggesting less than expected results. Overall, these results show Abbott ratios greater than 1.0 for only 14 of 24 cases (approximately 58%) which does not support an allegation of significant and unexpected results. According to MPEP 716.02(c), evidence of unexpected results must be both significant and unexpected.
As noted in the Office Actions dated September 3, 2026, and February 11, 2026, assuming purely arguendo that a proper side-by-side comparison was made, even then the Examiner would disagree that the results are unexpected in view of the prior art of Guimberteau. According to MPEP 716.02(a) a greater than additive effect (synergism) is not necessarily sufficient to overcome a prima facie case of obviousness because such an effect can be expected. In the instant case, although Guimberteau does not compare a composition containing pyrethroid alone with a composition containing moxidectin alone with a composition containing pyrethroid and moxidectin, Guimberteau does show that the combination of pyrethroid and moxidectin is effective against mosquitoes (Tables 3 – 6). Therefore, the Examiner disagrees that the instant results of Examples 1 and 2 are unexpected in view of the teachings of Guimberteau for a composition with permethrin and moxidectin (claims 1-5) to combat the claimed species of mosquitoes (paragraphs 0259, 0262). In other words, because Guimberteau teaches a composition with pyrethroid and moxidectin is effective against mosquitoes (Tables 3 – 6, claims 1 – 5, paragraphs 0259, 0262) and Hanai teaches pesticidal compositions as aerosol or fogging agents (paragraphs 0152, 0155), the combination of pyrethroid and moxidectin in a space spray composition against mosquitoes is prima facie obvious as combining prior art elements according to known methods to yield predictable results (MPEP 2143(I)(a)).
For each of the reasons discussed above, the 35 U.S.C. 103 rejection of claims 1, 5 – 7, 11 – 15, and 17 over Guimberteau in view of Hanai is maintained.
Conclusion
All claims are rejected. No claims are allowed.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Toriana N. Vigil whose telephone number is (571)270-7549. The examiner can normally be reached Monday - Friday 9:00 a.m. - 5:00 p.m. EST.
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/TORIANA N. VIGIL/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
