DETAILED ACTION
Status of Application
The Examiner acknowledges receipt of the arguments filed on 6/29/2026.
Claims 1-21 are presented for examination on the merits. The following rejections are made.
Response to Applicants’ Arguments
Applicant’s arguments filed 11/4/2025 regarding the rejection of claims 1-20 made by the Examiner under 35 USC 103 over Schneidmiller et al. (US 2012/0087871) have been fully considered but they are not found persuasive and is MAINTAINED for the reasons of record in the office action mailed on 8/4/2025.
In regards to the 103 rejection, Applicant asserts the following:
A) Scheidmiller’s does not teach the claimed oils at the specific weight percentages recited. There is no disclosure or suggestion in Schneidmiller of between 8-15% by weight of a dehydrate. Lastly, nowhere in Schneidmiller is a combination of geranium oil, mint oil, cedarwood oil and/or cinnamon oil ever contemplated. These oils are described within a list together with 23 oils and there is no direct teaching which suggests a combination of spearmint oil and geranium oil.
In response to A, the claims require about 0.001-5wt% spearmint oil, 0.01-5wt% geranium oil and 0-5% an oil selected from cinnamon oil, cedarwood oil and mixtures thereof. Applicant is correct in their assertion that Schneidmiller does not disclose a composition such as that claimed. However, the Examiner finds Applicant’s interpretation of Schneidmiller much too narrow and restrictive of one of ordinary skill.
Schneidmiller describes an essential oil composition wherein the essential oils are selected from include anise oil, castor oil, cedar oil, cinnamon oil, citronella oil, clove oil, corn oil, cottonseed oil, fennel seed oil, garlic oil, geranium oil, lavender oil, lemongrass oil, linseed oil, mint oil, patchouli oil, pennyroyal oil, peppermint oil, Roman chamomile oil, rosemary oil, sage oil, sesame oil, soybean oil, spearmint oil, thyme oil, wintergreen oil, and ylang ylang oil, or any combination thereof (see [0007] and claim 4). The selection of a known material (e.g. spearmint oil and geranium oil) based on its suitability for the intended purpose (e.g. controlling pests) s supportive of obviousness. See MPEP 2144.07. Applicant points to there being 23 oils to choose from thereby rendering the selection of geranium and spearmint oil nonobvious. The Examiner respectfully disagrees and instead suggests that selection of the compounds from the list of 23 would have been routine and obvious, especially as the compounds are taught by Schneidmiller as having a desired function/purpose. Applicant’s argument that because there are 17,550 possible essential oil combinations from the 23 essential oils recited by Schnedimiller is not persuasive because applying a factorial to the 23 essential oils as evidence for non-obviousness does not actually demonstrate non-obviousness. The totality of combinations is not presently a reason for non-obviousness because there is a motivation to manipulate the prior art so as to select from within the list of the interchangeable and obvious essential oils to identify mixtures which yielded desired outcomes. Additionally, one of ordinary skill in the art would be informed by Schneidmiller’s examples and preferred formulations which include 2-4 essential oils (see Formulations A-D). Taking together the obvious, interchangeable nature of Schneidmiller’s essential oils and that the preferred exemplary formulations contains 2-4 essential oils, the scope of Schneidmiller s greatly narrows such that one of ordinary skill in the art would be readily capable of selecting a combination of 2 or 3 or 4 essential oils from Schneidmiller’s list with a reasonable expectation for success.
Regarding the concentrations of the oils in the end use composition, admittedly the reference does not explicitly teach the percentages as claimed. Regardless, the reference would reasonably suggest to one of ordinary skill in the art that such concentrations could be employed with a reasonable expectation for success as functionally equivalent essential oil are used in concentration overlapping with that claimed (e.g. 1.5% lemongrass oil, 1.5% clove oil, 1% geranium oil, etc.). See MPEP 2144.05(II)(A) regarding the optimization of ranges.
Applicant’s argument that the reference fails to teach the dehydrate (e.g. isopropyl myristate) as being present within 8-15wt% is acknowledged by also not persuasive. Schneidmiller teaches that their composition comprise isopropyl myristate as a surfactant in an amount of between about 16-40wt% (see [0033, 0034]), ‘about 16wt%’ is sufficiently close to Applicants upper claimed limit to be considered obvious. See MPEP 2144.05(I) which states that obviousness exists where the claimed ranges/amounts do not overlap with the prior art but are merely close. Such is relevant to the current consideration.
Applicant’s arguments are not found persuasive.
Maintained Rejections, of Record
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 1-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Schneidmiller et al. (US 2012/0087871; of record).
Schneidmiller describes a wasp and hornet spray repellant composition.
The composition is to comprise a solvent such as isopropyl alcohol in an amount of between 10-30% by weight (see [0033, 0034]) (see instant claims 1, 5, 8, 11, 13, 16, 20 and 21), a surfactant such as isopropyl myristate (‘a dehydrate’) which may be present in an amount of between 16-40% by weight (see [0033, 0034]) (see instant claims 1, 7, 8, 11, 13, 17, 20 and 21), an essential oil (see [0006]) such as spearmint oil, geranium oil, cinnamon oil and/or cedar oil (i.e. cedarwood oil) (see [0007]) and a carrier such as mineral oil which is present in an amount of between 31.5-91.5% by weight (see [0021, 0033]) (see instant claims 1, 6, 8, 11, 13, 15 and 20). The composition may further comprise a propellant such as carbon dioxide in an amount of 3.5% by weight (see [0015, 0034]) (see instant claims 1, 9, 19 and 20). Schneidmiller is sufficiently narrow to lead one of ordinary skill in the art to a composition ‘consisting of’ the components claimed.
Schneidmiller teaches that the essential oil may comprise 1.5% lemongrass oil, 1.5% clove oil and 1% geranium oil (see [0040]). While the reference does not teach a combination of essential oil comprising 0.001-5% spearmint and 0.01-5% geranium (and a third oil (e.g. cinnamon oil, cedarwood oil) from 0.0-5%), one of ordinary skill would be capable of working within the general framework provided by Schneidmiller so as to arrive at a composition such as that claimed (see instant claims 1-3, 10, 11-13, 18 and 20). The general ranges of Schneidmiller overlap with the ranges claimed. Regarding the selection of the claimed oils, see MPEP 2143(I)(E) which states that choosing from a finite number of identified, predictable solutions (e.g. combination of spearmint oil, geranium oil and a third oil) with a reasonable expectation for success is supportive of an obviousness conclusion. Moreover, it is considered obvious to select known materials based on their suitability for the intended purpose (e.g. repelling/killing wasps and hornets). See MPEP 2144.07.
Regarding instant claims 4, 14 and 20, the weight ratio of geranium oil to spearmint oil being from about 0.5:1 to about 20:1 is considered obvious given that the reference teaches the composition may comprise spearmint oil and geranium oil and that the oil components may be present individually in similar amounts, e.g. 1.5%, 1%, and applying these concentrations to geranium oil to spearmint oil would result in range within that claimed, e.g. 1:1. MPEP 2144.05(II)(A) states that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.
The only difference between Schneidmiller and the instant claims is that Schneidmiller does not teach the specific combination of components as claimed in a single embodiment such as that claimed. The specific combination of features claimed is described by the teaching of Schneidmiller, but ‘such ‘picking and choosing’ within several variable does not necessarily give rise to anticipation. Where, as here, the reference does not provide any explicit motivation to select this specific combination of variables, anticipation cannot be found. However, it must be remembered that “[w]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” See MPEP 2141(I). Consistent with this reasoning, it would have been obvious to have utilized the framework set forth by the reference to arrive at compositions such as that claimed.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Conclusion
THIS ACTION IS MADE FINAL. 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 extension fee 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Bethany Barham, can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYLE A PURDY/Primary Examiner, Art Unit 1611
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