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 .
Status of Application
Receipt of Applicant’s traversal/remarks and Amendments filed on 08/20/2025 is acknowledged.
Applicant elected Group I (composition for attracting fruit flies), claims 1, 2, 5, 8-10, 13, 14 and 16 filed 08/16/2024. The election is made FINAL.
Claims 3, 4, 6, 7,11,12,15, 17- 42 are cancelled.
Claims 1, 2, 5, 8, 9, 10, 13 are amended.
Claims 43 – 47 are new.
Claims 1, 2, 5, 8-10,13,14,16 and 43-47 are pending and are included in the prosecution. No new matter has been added.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1, 2, 5, 8-10,13,14,16 and 43-47are rejected under 35 U.S.C. 101 in view of Advances in Fruit Aroma Volatile Research (hereinafter the reference is referred as El Hadi) because the claimed invention is directed to a product that is derived from natural products that without significantly more. Claim 1 recite(s) volatile compounds include (comprising) one or more short chain ester(s), and one or more further additives selected from long chain esters, and/or alcohols.
El Hadi disclose more than 300 volatile molecules have been reported in fresh apples, and the total number, identity and concentration of volatile compounds emitted by ripening apple fruit are cultivar specific, and the contribution of each compound to the specific aroma profile of each cultivar depends on the activity and substrate specificity of the relevant enzymes in the biosynthetic pathway, the substrate availability, the odor threshold above which the compound can be detected by smell, and the presence of other compounds (page 8202, ¶ 2.2). This reads on the limitation that the composition can be a gas mixture, because within the fruit’s contents of volatile compounds and the process of ripening, decaying or even fermenting, for example, the fruit naturally is “emitting” aroma and/or odor, which is a form of a gas and therefore, the composition (fruit) has the natural ability for attracting fruit flies. Additionally, the limitation for attracting fruit flies reads on many types of fruits, a pear, a melon, or even a strawberry because the volatile compounds of short chain esters, long chain esters and alcohols are all naturally occurring substances in these fruits (page 8203, entire page) and therefore would reasonably be considered to naturally attract fruit flies of various species. For example, on the premise that an apple sitting on a counter under a bell jar would be surrounded by an atmosphere of these esters and alcohol and thus would naturally lead to attraction of fruit flies. The recitation of “synthetic blend of volatile compounds” does not distinguish over natural volatile compounds.
In accordance with the 2019 Revised Patent Subject Mater Eligibility Guidance (aka 2019 PEG), the following revised flowchart found in MPEP §2106(III), is used when considering whether or not a claimed invention recites eligible subject matter:
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The invention recited in claims 1, 2, 5, 8-10,13,14,16 and 43-47 is drawn to a composition of matter, in this case a composition comprising volatile compounds include (comprising) one or more short chain esters (ethyl acetate, ethyl propionate, and ethyl butyrate), and one or more further additives selected from long chain esters (ethyl hexanoate, (Z)-3-hexenyl acetate, hexyl acetate), and/or alcohols (isoamyl alcohol, 2-methyl-1-butanol, iso-butyl alcohol).
Step 1 is satisfied.
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Step 2A first asks whether or not the claimed invention is directed to a judicial exception such as a product of nature. Here, the answer is yes, since the only compositional requirement set forth in the composition comprises volatile compounds, one or more short chain ester(s), one or more further additives selected from long chain esters, and/or alcohols.
In Step 2A, Prong 1 for a natural product, we need to set forth the markedly different characteristics analysis (see MPEP 2106.04(c)) which comprises three parts: 1) selecting and identifying what the appropriate natural counterpart is, 2) identifying characteristics to compare between your claim and the natural counterpart, and 3) evaluating the characteristics to determine whether they are markedly different.
The second leg of the analysis evaluates whether the claim recites additional elements that integrate the established judicial exception into a practical application of the exception. Based on the recitations provided in claim 1, the answer is no. There is not a practical application of the law of nature. These claims further recite ingredients that are naturally occurring (e.g., yeast and yeast species) selected from the group consisting of Pichia kluyveri, Pichia kudriavzevii, Pichia terricola, Hanseniaspora uvarum, Hanseniaspora opuntiae/meyeri, Hanseniaspora guilliermondii, Cryptococcus jlavescens, Aureobasidium pullulan, Wickerhamomyces sp., Starmerella bacillaris,
Kluyveromyces sp., Torulaspora sp., Satumispora diversa, and Saccharomyces cerevisiae., and further includes y-decalactone, wherein all of the above are naturally occurring substances found in fruits, plants surfaces, soil, making them a common part of the natural ecosystem. Therefore, the composition can just be “fruits” that contains volatile compounds, short/long chain esters and alcohols, for example, a melon, a pineapple, or a pear.
In Step 2A, Prong 2, we should focus on establishing what, if any, additional elements are recited in the claim and do these additional elements integrate the judicial exception into a practical application (see MPEP 2106.04(d)). There is no practical application because there are no additional elements recited.
Lastly, step 2B asks if the claim recites additional elements that amount to “significantly more” than the judicial exception. Asked another way, do the claims recite anything additional demonstrating that the recited composition provides an inventive concept? Here, again, the answer is no because the claims simply do not recite anything else, compositionally or structurally, which provides an inventive concept that departs from a natural product. The recitation of “synthetic blend of volatile compounds” in claim 1 does not distinguish over natural volatile compounds. Under Step 2B there are no additional elements and an inventive concept cannot be provided by the judicial exception. The recitation of wherein the alcohol is produced by a yeast species selected from the list in claim 10 does not distinguish from naturally occurring alcohols found in trace amounts in nature, as byproducts of fermentation in fruits, grains, and some plants.
It does not have markedly different characteristics from any naturally occurring counterpart(s) in their natural state. For example, gunpowder comprising a finely ground mixture of 75 % potassium nitrate, 15 % charcoal and 10 % sulfur. The three counterparts occur naturally in nature. None of them are explosive in nature. When the substances are finely ground and intimately mixed in the claimed ratio, the claimed combination is explosive upon ignition. The explosive property of the claimed combination is markedly different from the non-explosive properties of the substances by themselves in nature and thus the claimed combination has markedly different characteristics. In the instant case, there is no evidence that the combination has any markedly different characteristics. There is no indication that the claimed ingredients has any characteristics (structure, functional or otherwise) that are different from the naturally occurring ingredients. Another example involves an inoculant for leguminous plants comprising a plurality of selected mutually non-inhibitive strains of different species of bacterial of the genus Rhizobium, said strains being unaffected by each other in respect to their ability to fix nitrogen in the leguminous plant for which they are specific. Here, there is no indication that the claimed mixture of bacteria has any characteristics (structural, functional or otherwise) that are different from the naturally occurring bacteria. Discovery of the fact that certain strains of each species of these bacteria can be mixed without harmful effect to the properties of either is a discovery of their qualities of non-inhibition. The test is not whether the ingredients all occur naturally together in nature. There is no indication that the claimed ingredients has any characteristics (structure, functional or otherwise) that are different from the naturally occurring ingredients.
The composition as claimed is composed of just volatile compounds, one or more short chain ester(s), one or more further additives selected from long chain esters, and/or alcohols. The claim encompasses ingredients that exist in nature, thus the composition is formed of naturally occurring ingredients, for example volatile compounds and alcohols contained in fruits. It does not have markedly different characteristics from any naturally occurring counterpart(s) in their natural state. There is no indication that the claimed ingredients have any characteristics (structure, functional or otherwise) that are different from the naturally occurring ingredients. As such, the claim fails to recite subject matter that is patent eligible, and thus the claim does not amount to significantly more than the judicial exception.
Claim Rejections - 35 USC § 102
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 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.
Claim 1, 2, 5, 8-10,13,14,16 and 43-47are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Advances in Fruit Aroma Volatile Research (hereinafter the article is referred as El Hadi.
El Hadi teaches that fruits produce a range of volatile compounds that make up their characteristic aromas and contribute to their flavor, wherein fruit volatile compounds are mainly comprised of esters, alcohols, aldehydes, ketones, lactones, terpenoids and apocarotenoids (abstract).
Regarding claims 1-2, 5, 43 and 44, El Hadi teaches more than 300 volatile compounds have been identified in pear fruit, for example volatile esters ethyl acetate (corresponding to short chain esters), hexyl acetate (corresponding to long chain esters), and butanol (corresponding to alcohols) (page 8203, 1st ¶). Moreover, El Hadi disclose more than 300 volatile molecules have been reported in fresh apples, and the total number, identity and concentration of volatile compounds emitted by ripening apple fruit are cultivar specific, and the contribution of each compound to the specific aroma profile of each cultivar depends on the activity and substrate specificity of the relevant enzymes in the biosynthetic pathway, the substrate availability, the odor threshold above which the compound can be detected by smell, and the presence of other compounds (page 8202, ¶ 2.2). This reads on the limitation that the composition can be a gas mixture, because within the fruit’s contents of volatile compounds and the process of ripening, decaying or even fermenting, the fruit naturally is “emitting” aroma and/or odor, which is a form of a gas and therefore, the composition (fruit) has the natural ability for attracting fruit flies. For example, on the premise that an apple sitting on a counter under a bell jar would be surrounded by an atmosphere of these volatile esters and alcohol and thus would naturally lead to attraction of fruit flies. Additionally, the limitation for attracting fruit flies is a statement of intended utility and has no patentable weight. The recitation of “synthetic blend of volatile compounds” does not distinguish over natural volatile compounds.
Regarding claim 8, El Hadi teaches isoamyl alcohol, and 2-methyl butanol (page 8202, ¶ 2.2). A person skilled in the art would have known that these alcohols includes between 1 to 8 carbon atoms, therefore the limitation is met.
Regarding claims 9-10, as noted above, El Hadi teaches isoamyl alcohol and 2-methyl butanol. The recitation of wherein the alcohol is produced by a yeast species selected from the list in claim 10 does not distinguish from the alcohols as taught by El Hadi, because the recited isoamyl alcohol and 2-methyl butanol is the same end product, regardless if it was produced by the same yeast or not. Therefore, the limitation is met.
Regarding claims 14, 16, 45, 46 and 47, as noted above, El Hadi teaches ethyl acetate, isoamyl alcohol, 2-methyl butanol, and ethyl propionate, and γ-decalactone (page 8212, last ¶).
El Hadi fails to specifically recite a composition for attracting fruit flies, teach ratio of short chain ester to alcohol.
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.
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 1, 2, 5, 8-10,13,14,16 and 43-47 are rejected under 35 U.S.C. 103 as being unpatentable over Do Fruit Ripening Volatiles Enable Resource Specialism in Polyphagous Fruit Flies? (hereinafter the article is referred as Cunningham) in view of Yeast, not fruit volatiles mediate Drosophila melanogaster attraction, oviposition and development (hereinafter the article is referred as Becher); Chen et al. (CN 108450465) (hereinafter the reference is referred as Chen) (all above references cited in IDS filed 05/16/2023) and further in view of Baker et al. (US 6,543,181,B1) hereinafter the patent is referred as Baker).
Cunningham teaches a series of behavioral experiments to investigate the role of fruit ripening volatiles as host cues in the Queensland fruit fly Bactrocera tryoni (Froggatt), a polyphagous pest in Australia, wherein odors of mature guava (Psidium guajava) attracted female and male flies more strongly than three other ripening stages and guava pulp, and the analyzed volatiles from guava odor and selected eleven compounds, all of which elicited an electrophysiological response in the antenna of female flies, of which ethyl acetate, ethyl butyrate, and ethyl propionate, were released at the highest rates from the most attractive ripening stage, and in behavioral trials, these three esters in combination was necessary and sufficient in attracting female files (abstract). Moreover, Cunningham further disclose the three component blend of esters was as attractive as the entire 11-component blend, which without these key volatiles was not attractive, and by injecting low ranking hosts (squash and cucumber) with the three volatiles, it increased attraction in ovipositing female flies (abstract). The entire 11-component synthetic blend comprises of ethyl acetate, ethyl propionate, and ethyl butyrate in the volume ratio of 4:1:1 and hexanal, ethyl hexanoate, (Z)-3-hexenyl acetate, hexyl acetate, limonene, 3-phenyl-propylacetate, β-caryophyllene, and cinnamyl acetate, in the volume ratio of 1:5:100:13:1:100:5:100 (page 934, Experiment 2 ¶). Furthermore, Cunningham disclose the blend of volatiles were formulated in vials wherein the top is sealed with Parafilm to slow evaporation rates, as these compounds have a high volatility, and thereby the release rates of the volatile attractants (page 933, right column, 1st ¶).
Regarding claims 1, 2, 5, 43 and 44, as noted above, Cunningham teaches a composition for attracting fruit flies comprising synthetic blends of volatile compounds comprising ethyl acetate, ethyl propionate, and ethyl butyrate corresponding to short chain esters; and ethyl hexanoate, (Z)-3-hexenyl acetate, hexyl acetate corresponding to long chain esters. The recitation of “synthetic blend of volatile compounds” does not distinguish over natural volatile compounds.
Cunningham fails to specifically teach alcohols.
Becher teaches baker’s yeast Saccharomyces cerevisiae volatile compounds can obtain a strong response attraction from D. melanogaster, and further disclose a synthetic blend of five yeast-produced compounds elicited attraction similar to authentic yeast odor, which confirmed that flies use yeast volatiles for upwind attraction (page 5, right column, ¶ 5).
Regarding claims 8, 9, 10, 45 and 46, Becher teaches volatiles form headspace samples produced by fermentation of synthetic minimal medium, 20 h after inoculation with baker’s yeast Saccharomyces cerevisiae comprising 2-Methyl-1-butanol in the 13 volatile compounds composition (page 4, Table 1). The recitation of wherein the alcohol is produced by a yeast species selected from the list in claim 10 does not distinguish from the alcohols as taught by Becher, because the recited 2-Methyl-1-butanol is the same end product, regardless if it was produced by the same yeast or not. Therefore the limitation is met.
Chen teaches volatile attractant applied to citrus fruit flies comprising ethyl propionate, ethyl caprylate and (Z) 3-hexenyl acetate wherein the attractant is composed of a series of volatile substances included in fruits, is easily available in raw materials, simple in formula and convenient to prepare, and can achieve an excellent effect of attracting mature citrus fruit flies (abstract). Moreover, Chen disclose in an embodiment, a composition C1= ethyl acetate = ethyl propionate + ethyl butyrate in a mass ratio of 4:1:1 (page 5, Example 1, line 7) and although all the attractant combinations are effective, the effect of series B1-B5 (with hexenyl acetate added) is significantly better than that of C1 (page 6, lines 1-2). In an another embodiment, Chen disclose an alternate composition of ethyl propionate + ethyl octanoate + (Z) 3-hexenyl acetate + phenylethyl alcohol with a mass ratio of 1:1:1:1 (page 7, ¶ Example 5, lines 5-6), and further in an alternate embodiment ethyl propionate + ethyl octanoate + (Z) 3-hexenyl acetate + γ-decalactone with a mass ratio of 1:1:1:1 (page 7, ¶ Example 5, lines 9-10), and further disclose that phenylacetaldehyde and phenylethyl alcohol have no effect on the attracting ability of the basic mixture on Bactrocera dorsalis, wherein the base mixture is ethyl propionate + ethyl octanoate + (Z) 3-hexenyl acetate (mass ration 1:1:1), and with the addition of γ-octanolactone, γ-decalactone and benzaldehyde can improve the attracting ability of the basic mixture to Bactrocera dorsalis (page 7, Example 5, last ¶).
Regarding claims 14, 16 and 47, Chen teaches the volatile attractant component of the may also be added with benzaldehyde, γ-octanolactone, γ-decalactone, basilene, ethyl crotonate, ethyl acrylate, methyl benzoate, limonene, acetic acid, and one or more combinations of ethyl ester and ethyl butyrate (page 3, 2nd ¶). Moreover, Chen disclose the components of the attractant are selected from a series of volatile substances contained in the host fruit: ethyl propionate, ethyl acetate, ethyl butyrate are present in almost all fruits, especially guava, octanoic acid Ester is present in almost all kinds of fruits, (Z)3-hexenyl acetate is present in almost all kinds of fruits, γ-octanolactone, γ-decalactone, benzaldehyde are present in peach, basilene, ethyl acrylate, croton Ethyl acetate is present in mango, limonene is mainly from citrus fruits, and methyl benzoate is present in the virgin fruit (a fruit that is very popular with Bactrocera dorsalis) (page 3, 4th ¶). Furthermore, Chen disclose that adding γ-decalactone can improve the attracting ability of the basic mixture (page 7, Example 5, last ¶).
Chen fails to specifically teach ratio of short chain esters to alcohol.
Baker teaches a synthetic Drosophila fruit fly attractant composition (column 3, line 25) can further comprise, in embodiments, at least one additional volatile ester compounds, for example volatile aromatic esters or acetic acid esters, which compounds can be added to the mixture in measured amounts or can be generated in-situ by, for example, controlled or spontaneous esterification (column 3, lines 49-54). Moreover, Baker disclose “fugitive components”, which refers to any formulated or in-situ generated component or components which can be volatile, evaporate, deteriorate, change, fade, disappear, or the like concentration diminutive processes and for certain “fugitive components”, for example, 2-phenyl acetate or ethyl acetate, the concentration at any time may vary over a wide range, for example, a concentration of about 0 to less than 10 ppm when the attractant or attractant-trapant composition is prepared and which concentrations can decrease or increase with time followed by a period of continuous decrease in concentration by, for example, continued evaporation (column 4, lines 22-34). The in-situ generated ethyl acetate and 2-phenyl ethyl acetate can arise, for example, form esterification of acetic acid and ethanol and 2-phenyl ethanol (phenethyl alcohol), respectively and the in-situ generated ethyl acetate and 2-phenyl ethyl acetate can be present in the volatiles emanating from the attractant composition, for example in trace amounts to minor amounts of, from less than about 0.1 percent to greater than 99 percent relative to the amounts of the precursor alcohols present int the airborne emissions, or alternatively, by weight based on the total weight of the initially formulated composition and when the ethyl acetate and 2-phenyl ethyl acetate are deliberately, initially added as formulation components they can be present in amounts of from 0.01 parts by weight to greater than 10 parts by weight based on the total weight of the composition (column 5 lines 59-67 to column 6 lines 1-8). Furthermore, Baker disclose the volatile short chain alcohol can be, for example, ethanol and can be in an amount of from about 1 to about 10 parts by weight, and other suitable alcohols, for example, methanol, isopropanol, propanol, butanol, pentanol, hexanol, and cis-3-hexanol (column 6 lines 40-45). Notably, Baker disclose the ability of “fugitive components” to enhance attractant-trapant activity is shown in Table 13 and 14 of Example IV, in which the proportion of the one of these reaction products, ethyl acetate, is augmented by the addition of more ethyl acetate to the blend, and the new blend has greater attractant-trapant activity than the blend lacking the additional ethyl acetate, and similarly, augmenting the proportion of 2-phenyl ethyl acetate in the blend increases trapant-attractancy, as shown in Table 15 of Example IV (Column 13, lines 12-27).
Regarding claim 13, as noted above, Baker teaches a synthetic composition for attracting Drosophila fruit flies comprising augmenting the proportion of 2-phenyl ethyl acetate and/or ethyl acetate to alcohol in the attractant blend. The limitation of a ratio of short chain ester (ethyl acetate) to alcohol is taught. A person having ordinary skill in the art (PHOSITA) would have been able to optimize the ratio of short chain esters to alcohol to instant range of 50:1 to 70:1 in order to achieve the attraction desired. It would have been obvious to increase the amount of the short chain ester (ethyl acetate) to alcohol in order to increase the attractancy as disclosed by Baker. Moreover, a PHOSITA through mere routine optimization would have been able to select alternative alcohols, for example, isoamyl alcohol, 2-methy-1-butanol and iso-butyl alcohol or in a combination thereof to further achieve the desired strength of attraction.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to formulate the composition for attracting fruit flies comprising ethyl acetate, ethyl propionate, and ethyl butyrate (corresponding to instant short chain esters); and ethyl hexanoate, (Z)-3-hexenyl acetate, hexyl acetate (corresponding to instant long chain esters) as taught by Cunningham in view of Chen, and incorporate the baker’s yeast Saccharomyces cerevisiae comprising 2-Methyl-1-butanol as taught by Becher and further include volatile compound γ-decalactone in view of Chen.
One would have been motivated to do so because the combined teachings of Cunningham, Becher in view of Chen disclose volatile compounds, short chain esters, long chain esters and alcohols in a composition for attracting fruit flies. The mixture of synthetic blend comprises of ethyl acetate, ethyl propionate, ethyl butyrate, ethyl hexanoate, (Z)-3-hexenyl acetate, hexyl acetate with alcohol 2-Methyl-1-butanol to produce a strong response attraction from Drosophila melanogaster (Becher). One of ordinary skill in the art would have found it obvious to further incorporate additional volatiles, for example γ-decalactone, to improve the attraction of fruit flies in the composition as taught by Chen. One of ordinary skill in the art would have been motivated to do this because all the references are drawn to volatile compounds, short chain esters, long chain esters, and alcohols in compositions for attracting fruit flies. It would have been obvious to a PHOSITA to optimize the ratio of short chain esters (ethyl acetate to alcohol in the desired instant range of 50:1 to 70:1 in order to increase the attraction desired. As noted in the rejection above, Baker teaches by augmenting the proportion of 2-phenyl ethyl acetate in the blend increases trapant-attractancy, therefore, it would have been obvious to increase the amount of the short chain ester (ethyl acetate) to alcohol and/or optimize the fruit fly attractant blend in order to increase the attractancy. Moreover, a PHOSITA through mere routine optimization would have been able to select alternative alcohols, for example, isoamyl alcohol, 2-methy-1-butanol and iso-butyl alcohol or in a combination thereof to further achieve the desired strength of attraction.
It is obvious to combine prior art elements according to the known methods to yield predictable results. Please see MPEP 2141 (III)(A-G).
Response to Arguments
Applicant’s arguments with respect to the Rejections under 35 USC § 101, § 102 and § 103 in Office Action (filed 8/20/2025) in view of El Hadi have been fully considered but are found not persuasive.
As stated in page 4 and pages 10-12 of the Office Action (filed 8/20/2025), El Hadi teaches the identical volatile compounds and alcohols found in nature and the recitation of non-naturally “synthetic blend of volatile compounds” does not distinguish over natural volatile compounds. Moreover, claim 1 recites optionally 1 to 3 long chain esters which reads as the composition can just includes 1 to 3 short chain esters. Thus, these volatile compounds, either naturally occurring or of synthetic blend would reasonably results in attracting fruit flies as there are no significant change in their chemical properties and characteristics. The fact that the actual blend does not occur in nature does not affect the finding that each of the components is a naturally-occurring compound.
Regarding the rejections under 35 USC § 103, the amended claims to limit a non-naturally occurring composition comprising 1 to 3 short chain esters, between 1 to 3 alcohols, and optionally between 1 to 3 long chain esters again does not distinguish over the volatile compounds taught in Cunningham in view of Becher, Chen and further in view of Baker. the combined teachings of Cunningham, Becher in view of Chen disclose volatile compounds, short chain esters, long chain esters and alcohols in a composition for attracting fruit flies. The mixture of synthetic blend comprises of ethyl acetate, ethyl propionate, ethyl butyrate, ethyl hexanoate, (Z)-3-hexenyl acetate, hexyl acetate with alcohol 2-Methyl-1-butanol to produce a strong response attraction from Drosophila melanogaster (Becher). One of ordinary skill in the art would have found it obvious to further incorporate additional volatiles, for example γ-decalactone, to improve the attraction of fruit flies in the composition as taught by Chen. One of ordinary skill in the art would have been motivated to combine volatile compounds, short chain esters, long chain esters, and alcohols in compositions for attracting fruit flies. As stated in previous Office Action (page 19) it would have been obvious to increase the amount of the short chain ester (ethyl acetate) to alcohol and/or optimize the fruit fly attractant blend in order to increase the attractancy. Moreover, the combined reference teaches the subject matter and synthetic volatile compounds used in attracting fruit flies, thus it would have been obvious to a person having skill in the art to combine and optimize the selected alternative alcohols and/or volatile compounds, to further achieve the desired strength of attraction.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDRE MACH whose telephone number is (571)272-2755. The examiner can normally be reached 0800 - 1700 M-F.
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/ANDRE MACH/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615