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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 March 25, 2026 has been entered.
Election/Restrictions
To summarize the current election, the applicant elected Group II with traverse. The requirement was deemed proper and therefore made FINAL.
Claims 1-2 and 17-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Interpretation
Claim 16 recites “[a] method for inhibiting the ability of a spike (S) protein of SARS-CoV-2 to bind an angiotensin converting enzyme 2 protein comprising applying, to SARS-Cov-2, a liquid comprising chlorine dioxide at a concentration of 10 - 2000 ppm, thereby inhibiting the ability of the S protein of the SARS-CoV-2 to bind to the ACE2 protein by 30% or more compared to when chlorine dioxide is absent” [emphasis added]. The claim recites a single active step of applying a liquid composition comprising chlorine dioxide with a particular concentration range to SARS-Cov-2. The italicized portion of the claim recites the outcome of the active step in a “thereby” clause. "A 'whereby' clause that merely states the result of the limitations in the claim adds nothing to the patentability or substance of the claim." Texas Instruments, Inc. v. International Trade Comm., 988 F.2d 1165, 1172 (Fed. Cir. 1993). See also Minton v. National Assoc. of Securities Dealers, Inc., 336 F.3d 1373, 1381 (Fed. Cir. 2003) ("A whereby clause in a method claim is not given weight when it simply expresses the intended result of a process step positively recited.") (see MPEP 2111.04). The “thereby” clause of instant claim 16 acts as a “whereby” clause by merely characterizing the results of the recited step. Therefore, the "thereby" clause is not entitled to weight in construing the claim.
Claim Rejections - 35 USC § 102/103
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
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 3, 16, and 21-22 are rejected under 35 U.S.C. 102((a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Wang et al. (previously cited).
Wang et al. detail guidance to disinfect SARS-CoV-2 infected waste and wastewater by contacting the material with chlorine dioxide (see abstract). They further detail disinfection treatment of wastewater with 50 mg/L active chlorine (see page 8 first column second full paragraph-second column first partial paragraph; instant claim 16). Wang et al. teach that chlorine dioxide has 2.63 times the oxidation capacity of chlorine gas and recommend the use of chlorine dioxide to treat wastewater at an amount that is 1/2.5 that of available chlorine that is employed (see page 3 second column last partial paragraph). More generally concerning SARS-CoV-2, Wang et al. teach the potential danger to patients and medical staff for airborne infection from the waste as well as infection due to contact (see page 8 first column first full paragraph; instant claims 13-14 and 21-22). They go on to detail treating wastewater by chlorine disinfection via liquid chlorine, chlorine dioxide, or sodium hypochlorite (see page 8 second column first partial paragraph). Following their guidance concerning chlorine dioxide disinfection, the recommended 50 mg/L active chlorine in SARS-CoV-2 infected wastewater would correspond to chlorine dioxide applied at 1/2.5 of the active chlorine. Therefore, the 50 mg/L available chlorine of Wang et al. is provided by 20 mg/L (20 ppm) chlorine dioxide in the wastewater (see page 8 second full paragraph; as calculated by the examiner). Here the generation of the chlorine dioxide concentration in wastewater with SARS-CoV-2, as disclosed, also yields application of the resulting solution of chlorine dioxide to the SARS-CoV-2. Wang et al. teach a wastewater treatment time of 30 minutes for chlorine dioxide treatment (see table 4). They also teach disinfection of protective product contaminated with SARS-CoV-2 employing 1000 mg/L chlorine disinfectants which corresponds to 380 ppm chlorine dioxide, if the disclosed concentration is based on chlorine, or 1000 ppm chlorine dioxide, if the disclosed concentration is applied directly for each named chlorine disinfectant (see page 8 second column first partial paragraph; as calculated by the examiner). The instant specification details a liquid concentration of 0.25 mM (17 ppm) chlorine dioxide to be effective at reducing human ACE2 protein binding ability of the SARS-CoV-2 spike protein by greater than 30% after five minutes of treatment as compared to the same treatment in absence of chlorine dioxide (see example 1). The instant specification also details this property as concentration dependent, thus the 20 ppm, 380 ppm, and 1000 ppm chlorine dioxide concentrations in SARS-Cov-2 contaminated wastewater and waste of Wang et al. would be capable of achieving this performance threshold as well (see instant claims 3 and 16). According to MPEP 2112.01, “A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.” This treatment results from In re Spada, which states that, “Products of identical chemical composition can not have mutually exclusive properties.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Thus, in spite of silence of Wang et al. concerning the mechanism by which the chlorine dioxide inactivates SARS-CoV-2, the limitations of the method of the instant claims are met by the teachings of Wang et al. who 1) anticipate the recited composition and its application to SARS-CoV-2 or 2) render it obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to follow their guidance and apply their chlorine disinfection and available chlorine concentrations via chloride dioxide as they teach to the SARS-CoV-2 contaminated wastewater and waste because they state to do so. Therefore claims 3, 16 and 21-22 are anticipated by, or alternatively, are obvious over Wang et al.
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.
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 3-6, 9-10, 16, and 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Wang et al. in view of Kortvelyesi et al. (previously cited).
Wang et al. detail guidance to disinfect SARS-CoV-2 infected waste and wastewater by contacting the material with chlorine dioxide (see abstract). They further detail disinfection treatment of wastewater with 50 mg/L active chlorine (see page 8 first column second full paragraph-second column first partial paragraph; instant claim 16). Wang et al. teach that chlorine dioxide has 2.63 times the oxidation capacity of chlorine gas and recommend the use of chlorine dioxide to treat wastewater at an amount that is 1/2.5 that of available chlorine that is employed (see page 3 second column last partial paragraph). More generally concerning SARS-CoV-2, Wang et al. teach the potential danger to patients and medical staff for airborne infection from the waste as well as infection due to contact (see page 8 first column first full paragraph; instant claims 13-14 and 21-22). They go on to detail treating wastewater by chlorine disinfection via liquid chlorine, chlorine dioxide, or sodium hypochlorite (see page 8 second column first partial paragraph). Following their guidance concerning chlorine dioxide disinfection, the recommended 50 mg/L active chlorine in SARS-CoV-2 infected wastewater would correspond to chlorine dioxide applied at 1/2.5 of the active chlorine. Therefore, the 50 mg/L available chlorine of Wang et al. is provided by 20 mg/L (20 ppm) chlorine dioxide in the wastewater (see page 8 second full paragraph; as calculated by the examiner). Here the generation of the chlorine dioxide concentration in wastewater with SARS-CoV-2, as disclosed, also yields application of the resulting solution of chlorine dioxide to the SARS-CoV-2. Wang et al. teach a wastewater treatment time of 30 minutes for chlorine dioxide treatment (see table 4). They also teach disinfection of protective product contaminated with SARS-CoV-2 employing 1000 mg/L chlorine disinfectants which corresponds to 380 ppm chlorine dioxide, if the disclosed concentration is based on chlorine, or 1000 ppm chlorine dioxide, if the disclosed concentration is applied directly for each named chlorine disinfectant (see page 8 second column first partial paragraph; as calculated by the examiner). The pH of the chlorine dioxide solution that is applied to the SARS-CoV-2 is not detailed.
Kortvelyesi et al. teach a method of applying a biocidal solution to medical device surfaces and other materials for decontamination (e.g., water) in a healthcare setting (see abstract and page 6 last partial paragraph-page 7 first partial paragraph last paragraph). Human hands could contact both sites. The preferred composition has a chlorine dioxide concentration of 80 to 400 ppm along with free available chlorine present at a concentration of 80 to 350 ppm contributed by one or more of elemental chlorine, hypochlorous acid, and hypochlorite (see page 4 third-fourth full paragraph, claims 1, 4, and 9-10). The pH may range from 5.8 to 7.5 (see page 6 third full paragraph).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to practice the method of Wang et al. with the composition of Kortvelyesi et al. with a taught pH, chlorine dioxide concentration, and chlorite where the chlorine dioxide containing solution is applied to SARS-CoV-2 contaminated waste material. This choice would have been obvious because 1) Kortvelyesi et al. produce a disinfecting composition with a chlorine dioxide concentration that meets the requirements of Wang et al., in that it has a concentration that exceeds the value recommended for wastewater and embraces that which corresponds to waste treatment and 2) is envisioned in a disinfecting process in a medical setting. This modification also is obvious as the simple substitution of one known element for another in order to yield a predictable outcome. The selection of a chlorite as the free available chlorine compound is one of three detailed options and for this reason, it would have been obvious to select. The pH and chlorine dioxide concentration ranges overlap with those instantly claimed, thereby rendering the claimed ranges obvious. “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 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed.Cir. 1990)” (see MPEP 2144.05). The instant specification details a liquid concentration of 0.25 mM (17 ppm) chlorine dioxide to be effective at reducing human ACE2 protein binding ability of the SARS-CoV-2 spike protein by greater than 30% after five minutes of treatment as compared to the same treatment in absence of chlorine dioxide (see example 1). The instant specification also details this property as concentration dependent, thus the 80 to 400 ppm chlorine dioxide concentration of Kortvelyesi et al. would be capable of achieving this performance threshold as well. According to MPEP 2112.01, “A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.” This treatment results from In re Spada, which states that, “Products of identical chemical composition can not have mutually exclusive properties.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Further, the limitations of instant claims 5 and 6 are product-by-process recitations. “’[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.’ In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985)….The structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product. See, e.g., In re Garnero, 412 F.2d 276, 279, 162 USPQ 221, 223 (CCPA 1979)” (see MPEP 2113). Therefore, when no structure is implied, the product-by-process recitation does not add any limitations that affect patentability. Here, the preparation of the chlorine dioxide only from chlorite or by separately adding chlorite makes no clear difference to the structure of the applied composition such that it is distinguished from that of Kortvelyesi et al. Therefore claims 3-6, 9-10, 16, and 21-22 are obvious over Wang et al. in view of Kortvelyesi et al.
Claims 3-10, 16, and 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Wang et al. in view of Roselle et al. (previously cited).
Wang et al. detail guidance to disinfect SARS-CoV-2 infected waste and wastewater by contacting the material with chlorine dioxide (see abstract). They further detail disinfection treatment of wastewater with 50 mg/L active chlorine (see page 8 first column second full paragraph-second column first partial paragraph; instant claim 16). Wang et al. teach that chlorine dioxide has 2.63 times the oxidation capacity of chlorine gas and recommend the use of chlorine dioxide to treat wastewater at an amount that is 1/2.5 that of available chlorine that is employed (see page 3 second column last partial paragraph). More generally concerning SARS-CoV-2, Wang et al. teach the potential danger to patients and medical staff for airborne infection from the waste as well as infection due to contact (see page 8 first column first full paragraph; instant claims 13-14 and 21-22). They go on to detail treating wastewater by chlorine disinfection via liquid chlorine, chlorine dioxide, or sodium hypochlorite (see page 8 second column first partial paragraph). Following their guidance concerning chlorine dioxide disinfection, the recommended 50 mg/L active chlorine in SARS-CoV-2 infected wastewater would correspond to chlorine dioxide applied at 1/2.5 of the active chlorine. Therefore, the 50 mg/L available chlorine of Wang et al. is provided by 20 mg/L (20 ppm) chlorine dioxide in the wastewater (see page 8 second full paragraph; as calculated by the examiner). Here the generation of the chlorine dioxide concentration in wastewater with SARS-CoV-2, as disclosed, also yields application of the resulting solution of chlorine dioxide to the SARS-CoV-2. Wang et al. teach a wastewater treatment time of 30 minutes for chlorine dioxide treatment (see table 4). They also teach disinfection of protective product contaminated with SARS-CoV-2 employing 1000 mg/L chlorine disinfectants which corresponds to 380 ppm chlorine dioxide, if the disclosed concentration is based on chlorine, or 1000 ppm chlorine dioxide, if the disclosed concentration is applied directly for each named chlorine disinfectant (see page 8 second column first partial paragraph; as calculated by the examiner). The pH of the chlorine dioxide solution exposed to the SARS-CoV-2 is not detailed.
Roselle et al. teach a stabilized chlorine dioxide liquid for disinfecting applications that has increased efficacy (see paragraphs 4 and 8). The composition has a final pH of 2 to 7 (see paragraph 43). An example provides 109 ppm chlorine dioxide and sodium chlorite at 4891 ppm (0.5 wt%), where the chlorine dioxide is generated from the chlorite (see paragraph 61; instant claims 7-8).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to practice the method of Wang et al. with the composition of Roselle et al. with a taught pH. where the chlorine dioxide containing solution is applied to SARS-CoV-2 contaminated wastewater. This choice would have been obvious because 1) Roselle et al. produce a disinfecting composition with a chlorine dioxide concentration that meets the requirements of Wang et al., in that it has a concentration that exceeds the value recommended for wastewater and 2) is envisioned for various disinfecting processes. This modification also is obvious as the simple substitution of one known element for another in order to yield a predictable outcome. The pH range overlaps with those instantly claimed thereby rendering the claimed ranges obvious (see MPEP 2144.05). The instant specification details a liquid concentration of 0.25 mM (17 ppm) chlorine dioxide to be effective at reducing human ACE2 protein binding ability of the SARS-CoV-2 spike protein by greater than 30% after five minutes of treatment as compared to the same treatment in absence of chlorine dioxide (see example 1). The instant specification also details this property as concentration dependent, thus the 109 ppm chlorine dioxide concentration of Roselle et al. would be capable of achieving this performance threshold as well. According to MPEP 2112.01, “A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.” This treatment results from In re Spada, which states that, “Products of identical chemical composition can not have mutually exclusive properties.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Further, the limitations of instant claims 5 and 6 are product-by-process recitations. “’[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.’ In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985)….The structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product. See, e.g., In re Garnero, 412 F.2d 276, 279, 162 USPQ 221, 223 (CCPA 1979)” (see MPEP 2113). Therefore, when no structure is implied, the product-by-process recitation does not add any limitations that affect patentability. Here, the preparation of the chlorine dioxide only from chlorite or by separately adding chlorite makes no clear difference to the structure of the applied composition such that it is distinguished from that of Roselle et al. Therefore claims 3-10, 16, and 21-22 are obvious over Wang et al. in view of Roselle et al.
Claims 3, 11-12, 16, and 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Wang et al. in view of Harrison et al. (previously cited).
Wang et al. detail guidance to disinfect SARS-CoV-2 infected waste and wastewater by contacting the material with chlorine dioxide (see abstract). They further detail disinfection treatment of wastewater with 50 mg/L active chlorine (see page 8 first column second full paragraph-second column first partial paragraph; instant claim 16). Wang et al. teach that chlorine dioxide has 2.63 times the oxidation capacity of chlorine gas and recommend the use of chlorine dioxide to treat wastewater at an amount that is 1/2.5 that of available chlorine that is employed (see page 3 second column last partial paragraph). More generally concerning SARS-CoV-2, Wang et al. teach the potential danger to patients and medical staff for airborne infection from the waste as well as infection due to contact (see page 8 first column first full paragraph; instant claims 13-14 and 21-22). They go on to detail treating wastewater by chlorine disinfection via liquid chlorine, chlorine dioxide, or sodium hypochlorite (see page 8 second column first partial paragraph). Following their guidance concerning chlorine dioxide disinfection, the recommended 50 mg/L active chlorine in SARS-CoV-2 infected wastewater would correspond to chlorine dioxide applied at 1/2.5 of the active chlorine. Therefore, the 50 mg/L available chlorine of Wang et al. is provided by 20 mg/L (20 ppm) chlorine dioxide in the wastewater (see page 8 second full paragraph; as calculated by the examiner). Here the generation of the chlorine dioxide concentration in wastewater with SARS-CoV-2, as disclosed, also yields application of the resulting solution of chlorine dioxide to the SARS-CoV-2. Wang et al. teach a wastewater treatment time of 30 minutes for chlorine dioxide treatment (see table 4). They also teach disinfection of protective product contaminated with SARS-CoV-2 employing 1000 mg/L chlorine disinfectants which corresponds to 380 ppm chlorine dioxide, if the disclosed concentration is based on chlorine, or 1000 ppm chlorine dioxide, if the disclosed concentration is applied directly for each named chlorine disinfectant (see page 8 second column first partial paragraph; as calculated by the examiner). The instant specification details a liquid concentration of 0.25 mM (17 ppm) chlorine dioxide to be effective at reducing human ACE2 protein binding ability of the SARS-CoV-2 spike protein by greater than 30% after five minutes of treatment as compared to the same treatment in absence of chlorine dioxide (see example 1). The instant specification also details this property as concentration dependent, thus the 20 ppm, 380 ppm, and 1000 ppm chlorine dioxide concentrations in SARS-Cov-2 contaminated wastewater and waste of Wang et al. would be capable of achieving this performance threshold as well (see instant claims 3 and 16). A gel form of the chlorine dioxide solution is not detailed.
Harrison et al. teach a gel in which liquid chlorine dioxide is absorbed (se paragraph 14). Harrison et al. teach the utility of the polymer gelled chlorine dioxide is permitting long term storage for use in medical settings for cleaning microbes as well as protecting users from inadvertent inhalation and skin contact (see paragraphs 39-41). The structure is made by adding a polymer gelling agent to the chlorine dioxide solution and the solution is liberated by later dissolution of the gelled structure in water (see paragraphs 18-23; instant claims 11-12).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to practice the method of Wang et al. with the chlorine dioxide supplied from a gelled version of the chlorine dioxide to permit longer term storage prior to use. This modification would have been obvious as the application of the same technique to a similar product in order to yield the same improvement. To follow the guidance of Wang et al. and employ concentrations that fulfill their available chlorine concentration requirements via chloride dioxide as they teach to the SARS-CoV-2 contaminated waste and wastewater also would have been obvious because Wang et al. state to do so. The instant specification details a liquid concentration of 0.25 mM (17 ppm) chlorine dioxide to be effective at reducing human ACE2 protein binding ability of the SARS-CoV-2 spike protein by greater than 30% after five minutes of treatment as compared to the same treatment in absence of chlorine dioxide (see example 1). The instant specification also details this property as concentration dependent, thus the 20 ppm, 380 ppm, and 1000 ppm chlorine dioxide concentrations in SARS-Cov-2 contaminated wastewater and waste of Wang et al. would be capable of achieving this performance threshold as well (see instant claims 3 and 16). According to MPEP 2112.01, “A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.” This treatment results from In re Spada, which states that, “Products of identical chemical composition can not have mutually exclusive properties.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore claims 3, 11-12, 16, and 21-22 are obvious over Wang et al. in view of Harrison et al.
Claims 3, 16, and 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Wang et al. in view of Chen et al. (Biomedical and Environmental Sciences 2006 19:173-178).
Wang et al. detail guidance to disinfect SARS-CoV-2 infected waste and wastewater by contacting the material with chlorine dioxide (see abstract). More generally concerning SARS-CoV-2, Wang et al. teach the potential danger to patients and medical staff for airborne infection from the waste as well as infection due to contact (see page 8 first column first full paragraph; instant claims 13-14 and 21-22). They point to the teachings of Chen et al. as to guide the selection of the chlorine disinfectant procedures employed against SARS-CoV-1 contaminated material (see page 8 first column last full paragraph). Chen et al. teach chlorine dioxide solution prepared by adsorbing chlorine dioxide gas in pure water and diluting the resulting solution to 300 mg/L (300 ppm) (see page 173 second column last partial paragraph). Chen details applying the solution to contaminated wastewater for 30 minutes and successfully inactivating the SARS virus (see page 173 second column last partial paragraph- page 174 second column first partial paragraph).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to apply the suggestion of Wang et al. and apply the chlorine dioxide disinfecting solution concentration and exposure time of Chen et al. to SARS-CoV-2 contaminated wastewater because they state to do so. The instant specification details a liquid concentration of 0.25 mM (17 ppm) chlorine dioxide to be effective at reducing human ACE2 protein binding ability of the SARS-CoV-2 spike protein by greater than 30% after five minutes of treatment as compared to the same treatment in absence of chlorine dioxide (see example 1). The instant specification also details this property as concentration dependent, thus the 300 ppm chlorine dioxide concentration applied to in SARS-CoV-2 would be capable of achieving this performance threshold as well (see instant claims 3 and 16). According to MPEP 2112.01, “A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.” This treatment results from In re Spada, which states that, “Products of identical chemical composition can not have mutually exclusive properties.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore claims 3, 16, and 21-22 are obvious over Wang et al. in view of Chen et al.
Response to Arguments
Applicant's arguments filed March 25, 2026 have been fully considered. Rejections that are no longer pertinent to the pending claims due to cancellation of the claims at issue are no longer applied. The applicant’s arguments against the remaining rejections are not persuasive.
The applicant argues that Wang et al. is silent in regard to the way in which chlorine dioxide inactivates SARS-CoV-2 when employed as a disinfectant of SARS-CoV-2 contaminated waste. This silence is not an indication of the absence of the recited functionality in their disclosed method. There is no evidence that the practice of the method of Wang et al. fails to achieve the recited outcome. In addition, the instant specification shows that shorter exposure times and lower concentrations of chlorine dioxide than those employed by Wang et al. are more than sufficient to achieve the recited outcome. According to MPEP 2112.01, “A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.” This treatment results from In re Spada, which states that, “Products of identical chemical composition can not have mutually exclusive properties.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Thus, the concentrations of chlorine dioxide that are within the instant claim scope and provided by the prior art carry with them the same functionalities highlighted by the applicant. According to MPEP 2144 IV, “[t]he 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. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006).”
The applicant also argues that an available chlorine concentration cannot be converted into a concentration of chlorine dioxide because chlorine and chlorine dioxide have different selectivity. This argument is contrary to the explicit teaching of Wang et al. stating that such conversions can be made which they pair with the relative ratio to be employed (see Wang et al. page 3 second column last partial paragraph). Hampel also points to a similar conversion when preparing chlorine dioxide disinfectants (see US Patent No. 2,452,928 column 3 line 73-column 4 lines 6). Further, the recognized difference between the selectivity of chlorine dioxide and chlorine such that the former is sustained longer in contaminated environments is not an indication that this difference precludes standardization in the amount of chlorine provided by different chlorine sources.
Conclusion
No claim is allowed.
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/CARALYNNE E HELM/Examiner, Art Unit 1615
Prosecution Insights