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 Status
Applicant’s abstract and claim amendments and arguments in the response filed 12 November 2025 are acknowledged.
Claims 1-16 are pending.
Claims 17-21 are cancelled.
Claims 1-16 are amended.
Claims 9-16 are withdrawn.
Claims 1-8 are under consideration.
Examination is to the extent of the following species:
A) Polyoxometalates- [H2Mo6W6.O42]10 -and-
B) Type of microorganisms- Coronaviruses
Priority
Receipt is acknowledged of papers submitted under 35 U.S.C. 119(a)-(d), which papers have been placed of record in the file.
Information Disclosure Statements
Information Disclosure Statement (IDS) filed on 15 June 2026 has been considered by the Examiner. A signed copy of the IDS is included with the present Office Action.
Withdrawn Objections/Rejections
The objection to the abstract for being too short is withdrawn due to Applicant submitting a longer abstract.
The rejection of claim 1 under 35 USC 112(b) for being unclear is withdrawn due to amendments which remove a comma, making it clear that the particles having a triclinic form and particle size from 0.1-5 microns pertains to the zinc molybdate.
The rejection of claims 1-4 & 7 under 35 USC 112(b) for a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation is withdrawn due to amendments to the claims.
The rejection of claim 2 under 35 USC 112(b) for the indefinite phrase "such as" is withdrawn due to claim amendments.
The rejection of claim 3 under 35 USC 112(b) for the indefinite phrase “such as” and lack of antecedent basis is withdrawn due to claim amendments.
The rejection of claim 6 under 35 USC 112(b) for improper Markush language is withdrawn due to claim amendments.
The rejection of claim 8 under 35 USC 112(b) relative term is withdrawn due to claim amendments.
The provisional rejection of claims 1-8 on the ground of nonstatutory double patenting over copending Application No. 17/288792 in view of Carmen is withdrawn due to the application maturing to US Patent No. 12,484,585 drawn to a method of using zinc molybdate as an antimicrobial agent in combination with MoO3.
New and Maintained Objections/Rejections
Abstract Objection
The abstract of the disclosure is objected to because the abstract introduces NEW Matter. The concept of an “antimicrobial” mixture, and production and use of an “antimicrobial” was not contemplated by the as-filed disclosure. Page 13 of the as-filed specification discloses “antivirally active composite material as defined above for the production of an antivirally active product” (emphasis added). The contemplated antiviral mixture, and the production and use of an “antiviral” is more narrow than that of an “antimicrobial” present in the amended abstract. This changes the scope of the disclosure and introduces NEW MATTER. The abstract also adds more NEW MATTER with the concept of “durability” for an antimicrobial surface, the concept of surfaces for “medical, industrial or consumer application”, and the concept of incorporation into substrates. The amended abstract uses the language “ viruses, including enveloped viruses such as coronaviruses and influenza viruses” is not a clear and concise description of the invention as there is a question or doubt as to whether the features introduced by such narrower language (i.e. enveloped viruses, coronaviruses and influenza viruses) are required features of the invention or not.
Appropriate correction is required.
A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Objections
Claims 1, 2, and 4 are objected to because of the following informalities:
Claim 1 in line 2 defines zinc molybdate as ZnMoO4. Claim 1 line 4 recites “zinc molybdate (ZnMoO4)”. Since zinc molybdate is already defined in line 2, line 4 should just recite “ZnMoO4”.
Claim 2 recites “the viruses are enveloped and non-enveloped viruses” (emphasis added). Viruses are classified as “enveloped” or “non-enveloped” (emphasis added). As such, the appropriate conjunction should be “or”.
Claim 4 is not written in parallel with claim 1. Claim 1 recites an average particle size but claim 4 recites “an average grain size”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 6, 7 and 8 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 6 depends from claim 1. Claim 1 recites “Mo” which is the chemical abbreviation for molybdenum and “W” which is the chemical abbreviation for tungsten. Molybdenum and tungsten are Group VI transition metals on the periodic table. As such, the claim 6 recitation of “molybdenum (VI) and/or tungsten (VI)” fails to further limit claim 1.
Claim 7 depends from claim 1. Claim 1 recites ”polyoxometalates Mo:W 2: 1 or Mo:W 1: 1” which limits the polyoxometalates to two species (i.e. Mo:W 2: 1 or Mo:W 1: 1). Claim 7 expands the population of compounds to achieve the weight ratio of approximately 2:1 to the genera of all polyoxometalates instead of those having Mo:W 2: 1 or Mo:W 1: 1 ratio.
Claim 8 depends from claim 1. Claim 1 recites ”polyoxometalates Mo:W 2: 1 or Mo:W 1: 1” which limits the polyoxometalates to two species (i.e. Mo:W 2: 1 or Mo:W 1: 1). Claim 8 expands the population of compounds from which to achieve the mixture from polyoxometalates Mo:W 2: 1 or Mo:W 1: 1 to the genera of all polyoxometalates by reciting “the mixture comprising polyoxometalate and ZnMoO4”.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Applicant may wish to consider whether a claim 7 amendment to recite “the polyoxometalate” would obviate the rejection and write the claim in parallel with claim 6.
Applicant may wish to consider whether a claim 8 amendment to recite “the mixture comprising the polyoxometalate” would obviate the rejection and write the claim in parallel with claim 6.
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.
Claim(s) 1-6, and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Luthe (WO2019214841A1; previously cited) in view of Mardare et al. (Phys. Status Solidi A; 2016; Growth Inhibition of Escherichia coli by zinc molybdate with different crystalline structures; previously cited).
With regard to claims 1-3 & 5, Luthe teaches use of polyoxometalate for the treatment of viruses, see abstract and claims 1-3. The polyoxometalate (POM) can further comprise other biocidal materials, see pages 20, 25, 36, 37, 66,75, 76,78,88,90, and 91. With regard to claim 1, the polyoxometalate can be present from 0.001-99.99wt %, see pages 38 (i.e. an amount sufficient for combatting viruses given between 0.1% and 10% by weight taught as suitable for practicing the invention by the instant specification-pg. 9). With regard to claim 4, the size of the polyoxometalate can comprise 1nm-1,000 micron, preferable 2nm to 500 microns, see pages 22 and 74. The POM is present in an amount sufficient to combat microorganism because Lithe teaches the treatment of viruses, see abstract, pages 7 -10 and entire document. With regard to claim 6, Luthe teaches the POMs are at least one of the group consisting of molybdatophosphoric acid hydrate and tungstosilicic acid hydrate (pg. 76-77 & 79). With regard to claim 1, it would have been prima facie obvious to the ordinary skilled artisan before the effective filing date to have to combined the elements as claimed (i.e. POMs of molybdatophosphoric acid hydrate and tungstosilicic acid) by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results” (i.e. POMs of molybdatophosphoric acid hydrate and tungstosilicic acid) with a 1:1 ratio as an obvious place to start optimization. "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). Luthe teaches the composition can comprise zinc oxide particles, see pages 30 and 54. With regard to claim 8, the polyoxometalates can comprise water (hygroscopic agent) on the surface, see page 27 and 30.
Luthe does not teach the presence of zinc molybdate in triclinic form having a size between 0.1-5 microns.
Mardare teaches that zinc molybdate exists in different crystalline structures and that those structures demonstrate growth inhibition towards bacteria such as E. coli (see e.g., Title; Abstract). With regard to claim 1, therein, ZnMoO4 is disclosed as being a polymorph having both triclinic (α) and monoclinic (β) structures (see Introduction; pg. 1471). Zinc molybdenum oxide is also reported as displaying many features characteristic for zinc oxides and molybdenum oxides, one such being the antimicrobial properties of ZnO (see Introduction; pg. 1471). Further, a cited reference discloses that the antibacterial and antifungal properties of α-ZnMoO4 obtained by chemical synthesis and co-precipitation (see Introduction; pg. 1472; left col.). With regard to claims 1 & 4, Sample A is defined by the reference as being the triclinic structure of ZnMoO4 and through its method of manufacture, is further taught as having crystalline shapes and sizes ranging up to 1-2 microns (see Table 2 and Results; pg. 1473; right col.). Section 3.2 and Figure 3 report on the antimicrobial properties of the tested crystalline structures. With regard to claim 1, Figure 3 clearly shows that the triclinic structure (α-ZnMoO4) possesses the highest activity against E. coli, expressed as the lowest values for tested optical density. Figure 3 teaches 5 mM and 10 mM (i.e. 0.112% and 0.224% which is an amount sufficient for combatting viruses given between 0.1% and 10% by weight taught as suitable for practicing the invention by the instant specification-pg. 9).
It would have been prima facie odious to substitute the zinc oxide microparticles of Luthe for zinc molybdate having triclinic structure. One of ordinary skill in the art would have been motivated to do so because Mardare teaches that zinc molybdate which has a triclinic form displays features similar to zinc oxides such as the antimicrobial properties. There would have been a reasonable expectation of success because Luthe discloses zinc oxide microparticles can be present with polyoxometalates. The substitution of zinc oxide for zinc molybdate would have yielded predictable results to one or ordinary skill in the art given the teaching in Mardare of their similar antimicrobial properties.
Regarding the size of the zinc molybdate, as discussed above, Mardare teaches sizes ranging up to 1-2 microns which overlaps and therefor renders obvious the claimed size range from 0.1-5 microns and 0.15-1.0 microns. 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).
Regarding the type of viruses being treated, the species of coronaviruses being treated, and virus inactivation (instant claims 1-3 and 5), the recitation of the intended use for combatting various microorganism holds little patentable weight. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Here, the composition of the modified Luthe reference is capable of treating viruses thus meets the claims.
Claim(s) 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over Guggenbichler (EP3643177A1-published 4/29/2020-reference of record per 892 mailed 4/23/25; previously cited) in view of Carmen et al. (EP3175868A1; previously cited).
With regard to claim 1, Guggenbichler teaches triclinic forms of zinc molybdate as an antimicrobial active and composite materials which comprise zinc molybdate, see abstract, pages 2-5 and entire document. With regard to claims 1 & 4, the size of the zinc molybdate is from 0.2-5 microns which overlaps and therefore renders obvious the instantly claimed size ranges of from 0.1-5 and 0.15-1 microns, see pages 2-3 and 5. 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). With regard to claims 1-3 & 5, the zinc molybdate can be added from 0.1-80% by weight with preference between 1.8-5% by weight, see pages 7 and 9 (i.e. zinc molybdate is in an amount sufficient for combatting viruses given between 0.1% and 10% by weight is taught as suitable for practicing the invention by the instant specification-pg. 9). With regard to claim 8, the composition can further comprise a hydrophilizing and/or hygroscopic agent, see pages 2-3 and 6-9. The composite can comprise other active substances and/or auxiliary substances, see pages 2 and 6-7. With regard to claims 1-3 & 5, zinc molybdate is taught to be a broad spectrum agent active against viruses, see page 5. The zinc molybdate can be incorporated with a paint or lacquer, see pages 3 and 6.
Guggenbichler does not expressly teach that the further active substance can polyoxometalate (POM) comprising molybdenum or tungsten in the weight ratios of approx. 2:1.
With regard to claims 1 & 7, Carmen et al. teaches polyoxometalates present from 0.01-90% by weight of a substrate, see abstract, pages 5,22 and 28 and entire document. The substrate can comprise paint, see abstract. With regard to claims 1-3 & 5, polyoxometalates are known to have antiviral activity, see page 7. With regard to claims 1-3, 5, & 6, the polyoxometalate preferably comprises tungsten or molybdenum and kills microorganisms, see page 11 (i.e. Group VI transition metals on the periodic table). The polyoxometalate has a synergistic effect having antimicrobial properties and the ability to generate hyperoxide anion that reduces growth of biofilms on substrates, see pages 5 and 10. With regard to claim 1, Carmen teaches species I’’’ of the chemical formula:
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549
880
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in which Mo:W is 1:1 when r=11 and q =9 and Mo:W is 1:1 when r= 12 and q =10 (pg. 15).
It would have been prima facie obvious to combine the polyoxometalate of Carmen et al. with the zinc molybdate of Guggenbichler [yielding polyoxometalate to zinc molybdate from 0.000125:1 to 900:1; Math: 0.01: 80 = 0.000125:1; 90:0.1 = 900:1]. One or ordinary skill in the art would have been motivated to do so because Carmen teaches polyoxometalates can have synergistic antimicrobial activity and Guggenbichler teaches that their composite can comprise additional active substances. It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.). See also In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960). Here, Guggenbichler and Carmen provide compositions including paints which comprise antimicrobial activity, wherein polyoxometalates per the teachings of Carmen and zinc molybdate per the teachings of Guggenbichler are suggested to impart antiviral properties.
Regarding the ratio of polyoxometalate to zinc molybdate being approx. 2:1, Guggenbichler teaches that the zinc molybdate can be present from 0.1-80% by weight and Carmen teaches that polyoxometalate can be present with a substrate (including paints) in an amount from 0.01-90% by weight. These weight percents overlap the claimed ratio of approx. 2:1 for achieving antiviral activity. 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)
Regarding the type of virus being treated, the type of coronaviruses being treated, and virus inactivation (instant claims 1-3 and 5), the recitation of the intended use for combatting various microorganism holds little patentable weight. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Here, the composition of the Guggenbichler and Carme is capable of treating viruses given both zinc molybdate and polyoxometalate have recognized antiviral activity, thus the combination of Guggenbichler and Carmen meets the claims.
Response to Arguments
In the traverse of the rejection of the claims 1-6 and 8 under 35 USC 103(a) over Luthe and Mardare, Applicant argues the cited references do not suggest Mo:W polyoxometalates having defined ratios of 2: 1 or 1: 1; Luthe discloses individual molybdenum- or tungsten-based polyoxometalates such as molybdatophosphoric acid or tungstophosphoric acid (emphasis added; reply, pg. 8-9).
This is not persuasive. The examiner notes that the instant specification does not define that “Mo:W 2: 1” or “Mo:W 1: 1” are limited to occurring in the same chemical compound. Further, claim 1 recites a mixture comprising “polyoxometalates Mo:W 2: 1 or Mo:W 1: 1” (emphasis added). The claim permits mixture of polyoxometalates in which one species of polyoxometalate contains Mo and a second species of polyoxometalate contains tungsten in particular ratios. In other words, Applicant is arguing more narrow interpretation of the claims than what is actually claimed. Notably, Luthe discloses individual molybdenum or tungsten-based polyoxometalates and a 1:1 ratio of these two species is an obvious place to start optimization to produce a third composition to treat viruses.
Applicant argues the references do not disclose or suggest combining the polyoxometalates of Luthe with triclinic ZnMoO4 particles as taught by Mardare (reply, pg. 9).
This is not persuasive. Luthe teaches Mo and W containing polyoxometalates for the purpose of treating viruses by treatment of mollicute (i.e. bacteria) infections and contaminations (abstract). Mardare teaches in Figure 3, Sample A that zinc triclinic molybdate demonstrates growth inhibition towards the bacteria E. coli. It is obvious to combine two compositions suitable for the same purpose (i.e. treating bacteria) to form a third composition suitable for the same purpose (i.e. treating bacteria infections and contamination; In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980)).
Applicant argues Luthe and Mardare do not recognize the synergistic anti-viral effects of Mo:W polyoxometalates and triclinic ZnMoO4 (reply, pg. 9-10).
This is not persuasive. The 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) (motivation question arises in the context of the general problem confronting the inventor rather than the specific problem solved by the invention); Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1323, 76 USPQ2d 1662, 1685 (Fed. Cir. 2005) (“One of ordinary skill in the art need not see the identical problem addressed in a prior art reference to be motivated to apply its teachings.”); In re Lintner, 458 F.2d 1013, 173 USPQ 560 (CCPA 1972) (discussed below); In re Dillon, 919 F.2d 688, 16 USPQ2d 1897 (Fed. Cir. 1990), cert. denied, 500 U.S. 904 (1991). In the instant case, the ordinary skilled artisan would have been motivated to substitute Luthe’s zinc oxide with Mardare’s zinc molybdate because Mardare teaches that zinc molybdate which has a triclinic form displays features similar to zinc oxides such as the antimicrobial properties. The substitution of zinc oxide for zinc molybdate would have yielded predictable results to one or ordinary skill in the art given the teaching in Mardare of their similar antimicrobial properties. Further, the combined teachings of Luthe and Mardare suggest the recited composition having the recited reagents in the recited amounts and in overlapping ratios. The synergistic activity is a latent property of the mixture. The MPEP clearly teaches that prima facie obviousness is not rebutted by merely recognizing additional advantages or latent properties present in the prior art (MPEP 2145 II.) “Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979).
In the traverse of the rejection of claims 1-8 under 35 U.S.C. §103 over Guggenbichler and Carmen, Applicant argues the exemplified polyoxometalates of Carmen are tungsten-dominated and contain only minor molybdenum substitution (reply, pg. 10-11). Applicant further argues there is no motivation for Mo:W in balanced ratios or to combine them with ZnMoO4 (reply, pg. 11).
This is not persuasive. The teachings of a reference are not limited to the examples. Patents are relevant as prior art for all they contain (MPEP 2123.I.). “The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.” In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968)). In the instant case, Carmen teaches species I’’’ of the chemical formula:
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880
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in which Mo:W is 1:1 when r=11 and q =9 and Mo:W is 1:1 when r= 12 and q =10 (pg. 15).
Like Guggenbichler’s invention, Carmen’s e polyoxometalate has a synergistic effect having antimicrobial properties and the ability to generate hyperoxide anion that reduces growth of biofilms on substrates; it can also be incorporated into paint. It is obvious to combine two compositions suitable for the same purpose (i.e. treating bacteria) to form a third composition suitable for the same purpose (i.e. treating bacteria infections and contamination; In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980)).
In the traverse of the rejection of claims 1-8 under 35 U.S.C. §103 over Guggenbichler and Carmen, Applicant argues the mechanism of action of the invention, the intended use of treating coronavirus, and the enhanced antiviral efficacy of the instant application (reply, pg. 11).
With regard to the mechanism of action and the enhanced antiviral activity, these are latent properties that occur in an otherwise obvious composition. The MPEP clearly teaches that prima facie obviousness is not rebutted by merely recognizing additional advantages or latent properties present in the prior art (MPEP 2145 II.) “Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979). With regard to Applicant’s arguments pertaining to the intended use of the composition to treat coronavirus, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In the instant case, Guggenbichler teaches their invention, which contains zinc molybdate, has broad spectrum activity against viruses (see page 5).
Applicant makes no argument pertaining to dependent claims 2-8 other than they depend from patentable claim 1 (reply, pg. 12).
This is not persuasive. Claim 1 is not patentable for the reasons set forth in the rejections above.
Applicant argues that the claims are in condition for allowance and requests rejoinder of withdrawn claims (reply, pg. 12-13).
This is not persuasive. The claims are not in condition for allowance for the reasons set forth in the above rejections. Rejoinder of withdrawn claims is premature.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LORI K MATTISON whose telephone number is (571)270-5866. The examiner can normally be reached 9-7 (M-F).
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/LORI K MATTISON/Examiner, Art Unit 1619
/NICOLE P BABSON/Primary Examiner, Art Unit 1619
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