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 .
Status of the Claims
Claim 1 is pending in this application. Claim 1 is under examination.
Priority
The instant application, which is a national stage entry of PCT/IB2021/050812 filed on 02/02/2021, which claims priority from the foreign application # RU2020118686 filed on 06/05/2020.
Information Disclosure Statement
The information disclosure statements from 9/25/2025 has been considered.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Garrard L. Hargrove et al (US20140221208A1, publication date: 08/07/2014) (Hereinafter Hargrove), Mosha Harel et al (US20200267970A1, publication date: 08/27/2020, effective filing date: 05/12/2020) (Hereinafter Harel), and Yan Zhang et al (Optimum conditions for fabricating superhydrophobic surface on copper plates via controlled surface oxidation and dehydration processes, Applied Surface Science, Volume 280, 1 September 2013, Pages 898-902) (Hereinafter Zhang).
The instant claim is directed to a composition. The instant preamble of “for purifying water from cyanobacteria and green algae” is intended use which does not constitute a structural limitation. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. MPEP 2111.02 II. Additionally, it is also noted that the instant claim is construed as a product-by-process claim since it comprises method of making steps. While the instantly claimed process steps are also being considered, it is noted that the instantly claimed method of making steps carry less patentable weight as compared to if the instant claim was directed to a method. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." MPEP 2113 I.
Hargrove teaches “a controlled release algaecide comprising: a copper sulfate granule coated with at least one layer including polyurethane” (claim 43). Hargrove also teaches “wherein the controlled release algaecide is effective in controlling a growth of phytoplankton, including blue green algae” (claim 51). Hargrove also teaches “wherein the coating is present in amount ranging from about 15 wt. % to about 25 wt. %” (claim 49). This teaches indicates that Hargrove teaches copper sulfate concentration range of 75-85 wt. %, which overlaps with the instantly claimed 85-97 wt % for copper sulfate and “remainder” for the coating. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I. Regarding the instantly claimed process steps, Hargrove also teaches a method of manufacturing a controlled release algaecide (claim 54). Hargrove teaches heating copper sulfate granules to a temperature of 150° F (65° C) (claim 54, para 30, example 1) prior to coating followed with 5 minutes at 150° F (65° C) after coating (para 31), thereby meeting the instantly claimed by way of adding coating composition into copper sulphate powder heated to a temperature of 60-70° (prior to mixing), and also “incubating at a temperature of 65° C for no more than 5 minutes” after mixing in the coating composition. Regarding the instantly claimed “uniform mixing” limitation, Hargrove provides coating sequence to coat the copper sulfate granules in table 1 (para 31). Absent evidence of the contrary, Hargrove’s step of coating the granules is interpreted as uniform mixing. Hargrove also teaches “the product was then cooled to 115° F” (46.1° C) (para 31) which is not room temperature, however, under broadest reasonable interpretation, since the product will eventually be allowed to cool to reach room temperature, the instantly claimed “cooling to room temperature” limitation is met.
Hargrove does not teach the coating as “a high-melting triglyceride fraction” (instead teaches polyurethane). Hargrove also does not teach “a contact angle of 155-165°.” Hargrove also does not teach “grinding the resulting mixture to a dispersed state with a particle size of 50-250 microns”.
Harel teaches “a composition for mitigating, inhibiting, and/or eliminating phytoplankton growth in a waterbody, the composition comprising granules comprising an algicide at concentrations of 80.0-99.5% (w/w) of the composition and a hydrophobic coating material at concentration of 0.5-20% (w/w) of the composition” (claim 31) wherein the algicide comprises copper sulfate pentahydrate (claim 33), “being formulated as granules with a granule size in the range of 10-1500 μm” (claim 35), wherein “the coating material may be or include a fatty acid . . . the fatty acid may be a triglyceride” (para 192), and wherein “examples of suitable coating materials include . . . palm-oil . . . palm-oil mono- and di-, hydrogenated, ethoxylated.” (para 194). It is noted that instant specification uses palm-oil based emulsifiers as high-melting triglyceride fractions (instant specification page 5 lines 2-5). Accordingly, Harel’s teaching meets the instantly claimed high-melting triglyceride fraction limitation. Further, Harel’s teaching of granule size range of 10-1500 μm overlaps with the instantly claimed 50-250 microns limitation. It is also noted that while Harel does not disclose “grinding” step to achieve desired granule sizes, Harel teaches “the granule size should be optimized to ensure fast resurfacing while on the one hand allowing release of the AI and on the other preventing it from diffusing into the water surface at early stages of the resurfacing phase” (para 197). A person of ordinary skill in the art would achieve said optimized via grinding method. That said, it is noted that since the instant claimed is a product-by-process claim, not all process steps need to be taught by prior art as long as the final product to be achieved is within the instantly claimed size range.
Zhang teaches “optimum conditions for fabricating superhydrophobic surface on copper plates” (title) and teaches “the surface fabricated under optimized conditions displayed excellent superhydrophobicity of high water contact angle of 161.1°” (abstract).
It would have been obvious to one of ordinary skill in the art at the time of instant application to have combined the teachings of Hargrove, Harel and Zhang and achieve the instant invention. Harel provides the motivation of replacing the coating of Hargrove with a hydrophobic coating such as triglycerides. Harel teaches “The inventor of the present application unexpectedly found that compositions comprising an AI properly encapsulated with a hydrophobic coating may, despite having a specific gravity higher than that of water (>1.0 g/cm3), float or at least resurface within 0.01-120 min after having been submerged in water and remain floating even after mixing.” (para 34). Hargrove invention is concerned with “treatments for controlling phytoplankton growth in a body of water” (para 2). Zhang merely teaches optimum conditions for fabricating superhydrophobic surface on copper plates and provides optimal water contact angles. A person of ordinary skill in the art would be motivated to incorporate the teachings of Harel and Zhang into the teachings of Hargrove with a reasonable expectation of successfully achieving an algaecide product with optimal hydrophobicity and water contact angles.
Response to Arguments
Applicant's arguments filed 9/16/2025 have been fully considered.
The arguments pertaining to the Non-Statutory Double Patenting Rejection are found persuasive and the rejection has been withdrawn.
The arguments regarding the 103 over Hargrove et al in view of Harel et al and Zhang et l has been considered but are not persuasive.
Applicant argues that Hargrove does not teach the high melting triglyceride or the instant amount of copper sulfate and only teaches one point of the claimed range.
It should be noted that the instant rejection is made under obviousness since as acknowledged in the rejection, Hargrove does not teach the claimed high melting triglyceride. Hargrove as acknowledged in the rejection teaches polyurethane, wax, and vegetable oil derived polyols. Specifically paragraph 19 teaches “In one embodiment, the polyol is a vegetable oil derived polyol. Vegetable oil derived polyols are also sometimes referred to as oleo polyols or triglycerides.’ The coating is used to control the release of the copper sulfate which is taught to be an algaecide to control the growth of phytoplankton. See para 13-14. As acknowledged by applicant, Hargrove teaches the copper sulfate may be in the amount of 85%. Since a point of the claimed range is taught, a prima facie case of obviousness exists. See MPEP 2144.05. Moreover a case of obviousness exists when there is a reasonable rationale to optimize. In instant case, Hargrove clearly teaches copper sulfate is used as a algaecide to control the growth of phytoplankton and the coating layer is used to control the release. See paragraph 25. From this teachings itself, a skilled artisan would readily understand that one can manipulate the coating layer to control the release rate; thus a teaching that the components may be manipulated exists. Moreover, Harel teaches “A composition for mitigating, inhibiting, ameliorating and/or eliminating phytoplankton growth in a waterbody, the composition comprising an algicide at concentration of 80.0-99.5% (w/w) of the composition and a coating material at concentration of 0.5-20% (w/w) of the composition.” See abstract. Harel teaches the algicide may be copper sulfate pentahydrate. See claim 32 and para 7. Example 7 teaches a copper sulfate pentahydrate in the amount of 95% and 5% of a coating. Table 1 teaches copper and mixture of fatty acids falling in the instant ranges. The coating is taught to be selected from wax, paraffin or fatty acid (including triglycerides) wherein the coating melting temperature between 50-90° C is mixed to encapsulate the active. The coating layer is also taught to be relied upon to control the release rate of the active. Therefore, motivation to manipulate the components clearly exists. It is further noted that Harel teaches copper sulfate pentahydrate and a mixture of fatty acids in the same amount as claimed. See Table 1.
Moreover, applicant argues that the instant invention minimizes additives in the formulation and reduces the cost of the manufacturing process. It first should be noted that the instant claim is directed to a product and not a process of making. Second, the instant invention recites comprising language and consisting and therefore, the composition is not limited as argued. Nonetheless, Harel also teaches a composition containing the active and the coating agent. See Table 1. Example 7 teaches a copper sulfate pentahydrate in the amount of 95% and 5% of a coating and teaches mixing of the two so the coating encapsulates the active.
When a rationale to optimize exists, applicant should provide evidence that unexpectedness exists and the claimed range is critical or the process limitations provide a structural limitation that is critical.
Regarding the arguments of the process steps, Note MPEP 2113.
"The Patent Office bears a lesser burden of proof in making out a case of prima facie obviousness for product-by-process claims because of their peculiar nature" than when a product is claimed in the conventional fashion. In re Fessmann, 489 F.2d 742, 744, 180 USPQ 324, 326 (CCPA 1974). Once the examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an nonobvious difference between the claimed product and the prior art product. In re Marosi, 710 F.2d 799, 803, 218 USPQ 289, 292-33 (Fed. Cir. 1983).
Regarding applicant’s assertion that the instant invention allows it is stay on the surface of the water, Harel also teaches buoyancy of the particles. See table 1. Applicant argues the coating angle is achieved by the instant hydrophobic material and the process used. It should be noted that the prior art, both Harel and Hargrove suggests triglycerides (Hargrove- para 19) and mixing of the coating onto the active. Applicant argues the invention provides “the fine balance of physical properties of the components and conditions of the preparation process” but has not provided any evidence to support such an assertion. If the contact angle is different, it is applicant’s burden to show the unobvious difference that the process steps yield. See MPEP 2113.
The rejection is maintained.
Conclusion
No claims are allowed.
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 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.
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/SHARMILA G LANDAU/Supervisory Patent Examiner, Art Unit 1653