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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 25 September 2026 has been entered.
Status of Claims
Receipt is acknowledged of the claim amendments filed on 01 September 2026.
Claim 1 has been amended.
Claims 3 and 15 are cancelled.
Claims 4-5 and 19-20 remains withdrawn from consideration.
Claims 1-2, 6-14 and 16-18 are presented for examination herein to the extent that the combustion product or alkaline material is incinerated poultry litter, e.g., applicant’s elected species.
New Grounds of Rejection
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 and 6-14 and 16-18 are rejected under 35 U.S.C. 103 as being unpatentable over TOMOHIDE (JP 2011/235248 A, published 01 February 2017) in view of BOECKMANN (“Wood Ash to Deter Slugs & Snails”, electronic publication obtained from URL: https://www.slughelp.com/ash-to-deter-slugs-and-snails/ on 13 November 2025, earliest publication date using Wayback Machine is 08 June 2020) and JACOBS (“How to Keep Slugs & Snails Away”, electronic publication obtain from URL: https://www.agardenforthehouse.com/hostas-how-to-keep-slugs-snails-away/ on 13 November 2025, last updated date of 25 May 2012) as evidenced by the instant specification.
Tomohide is primarily directed towards granular poultry droppings combustion ash (abstract of the English translation).
Regarding claims 1, 6, and 9-10, Tomohide discloses granule of chicken manure ash (e.g., incinerated poultry litter) that are used as fertilizer (second page, seventh to ninth paragraphs of the English translation). Tomohide discloses granular chicken manure burning ash product (e.g., the only material, about 100%) with a particle size 2.0-4.0 mm (Example 1, paragraph bridging fourth and fifth page of the English translation).
Regarding claims 7-8, Tomohide does not disclose that the granule of chicken manure ash (e.g., incinerated poultry litter) have heavy metals or pesticides (see entire English translation of the foreign patent document).
Regarding claim 11, Tomohide discloses that the granules obtained by briquette granulation that are close as possible to true sphere (third page, second paragraph of the English translation).
Regarding claim 18, Tomohide discloses that chicken manure combustion ash is alkaline (fourth page, third paragraph of the English translation). Tomohide discloses granular chicken manure burning ash product (e.g., the only material, about 100%) with a particle size 2.0-4.0 mm (Example 1, paragraph bridging fourth and fifth page of the English translation). As evidenced by the instant specification, granules of ash with a size of from 1.5 to 5.0 mm after drying has a bulk density of 1kg/L (page 10, lines 1-2). Thus, the granule of chicken manure ash disclosed by Tomohide is substantially the same as the instantly claimed granules of incinerated poultry litter, and necessarily would have the same properties, e.g., have a bulk density of from 0.8 to 1.2 kg/L, especially in the absence of evidence to the contrary.
Tomohide does not specifically teach that the granule of chicken manure combustion ash (e.g., incinerated poultry litter) are used to form a barrier to molluscs (e.g., claim 1). Tomohide does not specifically teach preventing molluscs from accessing plants comprising arranging the composition comprising granule of chicken manure combustion ash (e.g., incinerated poultry litter) to form a barrier around a target to be protected from molluscs (e.g., claim 2). Tomohide does not specifically teach that the molluscs include slugs and snails (e.g., claim 12). The deficiencies are made up for by the teachings of Boeckmann and Jacobs.
Boeckmann is primarily directed towards using wood ash to deter slugs and snails in the garden (see entire electronic publication).
Regarding claims 1-2 and 12-14 and 16-17, Boeckmann teaches that the drier it is underground, the harder it becomes for slugs and snails to move around (first page of the copy of the electronic publication). Boeckmann teaches ash works to repel some slugs and snails. Boeckmann teaches that snails and leopard slugs turn around immediately after coming into contact with a wall of ash (page 3 of the copy of the electronic publication). Boeckmann teaches scattering dry ash around threatened plants to form a protective wall (e.g., preventing molluscs from accessing plants, within 1 meter of the target, used as a barrier, granules in contact with one another, closed shape) (under “How to Use Ash” on page 4 of the copy of the electronic publication). Boeckmann teaches that ash also acts as a fertilizer (under “Advantages” on the fourth page of the copy of the electronic publication).
Jacobs is primarily directed towards how to keep slugs and snails away from plants (see entire copy of the electronic publication).
Regarding claims 1-2, 12-14 and 16-17, Jacobs teaches that slugs and snails are physiologically acidic and that they detest alkaline soils (third page of the copy of the electronic publication). Jacobs teaches that hostas and vegetables of all kinds enjoy soil with a fairly high pH (third page of the copy of the electronic publication). Jacobs teaches pouring lime which is alkaline in a circle around each hosta which deterred slugs (e.g., barrier on a soil surface) (fourth and fifth pages of the copy of the electronic publication).
It would have been prima facie obvious to the person of ordinary skill in the art before the effective filing date of the claimed invention to use granule of chicken manure ash (e.g., incinerated poultry litter) to produce a wall around a plant threatened by snails and slugs (e.g., barrier on a soil surface) in order to deter the snails and slugs from damaging the plant. The person of ordinary skill in the art would have been motivated to make those modifications because granule of chicken manure ash (e.g., incinerated poultry litter) are dry like wood ash, also act as a fertilizer, and further is alkaline, thus, one of ordinary skill in the art would expect that granule of chicken manure ash (e.g., incinerated poultry litter) can be used to provide a wall around plants to deter snails and slugs from accessing the plants. The person of ordinary skill in the art would have reasonably expected success because Tomohide discloses granule of chicken manure ash (e.g., incinerated poultry litter) that are used as fertilizer (second page, seventh to ninth paragraphs of the English translation). Tomohide discloses granular chicken manure burning ash product (e.g., the only material, about 100%) with a particle size 2.0-4.0 mm (Example 1, paragraph bridging fourth and fifth page of the English translation). Tomohide discloses that chicken manure combustion ash is alkaline (fourth page, third paragraph of the English translation). Boeckmann teaches that the drier it is underground, the harder it becomes for slugs and snails to move around (first page of the copy of the electronic publication). Boeckmann teaches ash works to repel some slugs and snails. Boeckmann teaches that snails and leopard slugs turn around immediately after coming into contact with a wall of ash (e.g., barrier on a soil surface) (page 3 of the copy of the electronic publication). Boeckmann teaches scattering dry ash around threatened plants to form a protective wall that is thick and wide as possible and remove any bridges that might help slugs bypass the wall (e.g., preventing molluscs from accessing plants, within 1 meter of the target, used as a barrier on a soil surface, granules in contact with one another, closed shape) (under “How to Use Ash” on page 4 of the copy of the electronic publication). Boeckmann teaches that ash also acts as a fertilizer (under “Advantages” on the fourth page of the copy of the electronic publication).
Response to Arguments
Applicant argues that nothing has been cited to suggest that incinerated poultry litter would have a drying effect or a repellent effect to slugs and snails. Applicant argues that because incinerated poultry litter is in the form of granules as instantly claimed, one skilled in the art would expect that the powdered form of ash Boeckmann describes would be more effective in absorbing moisture due to its finely divided physical form and would not expect solid granules, even if composed of wood ash, to have the same effect.
Applicant's arguments filed on 01 September 2026. have been fully considered but they are not persuasive. In response, Tomohide discloses granular chicken manure burning ash product (e.g., the only material, about 100%) with a particle size 2.0-4.0 mm (Example 1, paragraph bridging fourth and fifth page of the English translation). Tomohide discloses that the granules can be used as a fertilizer (page 3, second paragraph). Tomohide discloses that chicken manure combustion ash is alkaline (fourth page, third paragraph of the English translation). Boeckmann teaches that the drier it is underground, the harder it becomes for slugs and snails to move around (first page of the copy of the electronic publication). Boeckmann teaches ash works to repel some slugs and snails. Boeckmann teaches that snails and leopard slugs turn around immediately after coming into contact with a wall of ash (page 3 of the copy of the electronic publication). Boeckmann teaches scattering dry ash around threatened plants to form a protective wall (e.g., preventing molluscs from accessing plants, within 1 meter of the target, used as a barrier, granules in contact with one another, closed shape) (under “How to Use Ash” on page 4 of the copy of the electronic publication). Boeckmann teaches that ash also acts as a fertilizer (e.g., after rain or irrigation) (under “Advantages” on the fourth page of the copy of the electronic publication). Jacobs teaches that slugs and snails are physiologically acidic and that they detest alkaline soils (third page of the copy of the electronic publication). Jacobs teaches that hostas and vegetables of all kinds enjoy soil with a fairly high pH (third page of the copy of the electronic publication). Jacobs teaches pouring lime which is alkaline in a circle around each hosta which deterred slugs (fourth and fifth pages of the copy of the electronic publication). Thus, in light of the disclosure of Tomohide and the teachings of Boeckmann and Jacobs, it would have been prima facie obvious to the person of ordinary skill in the art before the effective filing date of the claimed invention to use granule of chicken manure ash (e.g., incinerated poultry litter) to produce a wall around a plant threatened by snails and slugs in order to deter the snails and slugs from damaging the plant because it also contains an ash, is alkaline and provides fertilization which are the same properties of the wall forming materials of Boeckmann and Jacobs, respectively.
Additionally, Applicant provides an opinion without factual evidence that granules of chicken manure ash (e.g., incinerated poultry litter) would not have a drying effect or repellent effect to slugs or snails. Therefore, Applicant’s mere opinion is not evidence of nonobviousness and is not persuasive.
Applicant argues that Jacobs does not disclose or suggest the formation of a physical barrier to molluscs at all and that Jacobs only described use of lime to increase soil pH which would require that the lime be watered in so that the dissolved lime seeps down into the soil.
In response, Jacobs teaches pouring lime which is alkaline in a circle around each hosta which deterred slugs (e.g., barrier on a soil surface) (fourth and fifth pages of the copy of the electronic publication). Therefore, Jacobs does teach forming a physical barrier to the molluscs.
Applicant argues the modifying Tomohide such that its incinerated poultry litter is used in the manner of Boeckmann or Jacobs, or modifying either Boeckmann or Jacobs to use the incinerated poultry litter of Tomohide, would necessarily change the principle of operation of the modified reference. Applicant argues that if one were to seek or permit such an increase in alkalinity, achieving it requires that any alkalinity-increasing material be watered into the soil rather than deposited on its surface. Applicant argues that watering in the material necessarily conflicts with the “dryness” cited by the Examiner as motivation to use incinerated poultry litter as a mollusc barrier. Applicant argues that utility as a fertilizer is not relevant to use the material as a mollusc barrier, therefore, it would not motivate one skilled in the art to substitute incinerated poultry liter for Boeckmann’s wood ash or Jacobs’ lime as a means of deterring molluscs.
In response, modification of Tomohide method of using granules of chicken manure ash (e.g., incinerated poultry litter) for fertilization would provide additional advantage including deterring slugs and snails by creating a wall around a plant to be protected from slugs and snails because it contains mostly chicken manure ash which is similar to Boeckmann’s wood ash used as a wall that also provides fertilization and alkalinity similar to the lime used by Jacobs as a wall, while at the same time continue to provide fertilization after rain or irrigation which would cause disintegration of the granules of chicken manure ash (e.g., incinerated poultry litter) into the soil.
Applicant argues that Boeckmann cites that alkalinity is a significant disadvantage of the use of wood ash because it raises the pH of soil and not all flowers and plants appreciate that. Applicant argues that as such, the cited references demonstrate that alkalinity itself is not necessarily advantageous in a mollusk barrier used to protect plants.
In response, Boeckmann teaches that ash may not work for all flowers and plants but can work for certain flowers and plants and that is why close attention to see which plants tolerate the ash and which react badly to it (page 5/20). Jacobs teaches plants that enjoy soil with fairly high pH include including hostas and delphinium (page 3/25). Therefore, one of ordinary skill in the art would be able to determine which plants and flowers the chicken manure ash (e.g., incinerated poultry litter) can be used as a wall around to protect from slugs and snails.
Thus, for the reasons of record and for the reasons presented above claims 1-2, 6-14 and 16-18 are rejected under 35 U.S.C. 103(a).
Conclusion and Correspondence
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN P NGUYEN whose telephone number is (571)270-5877. The examiner can normally be reached Monday-Friday 10am-6pm EST.
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/JOHN P NGUYEN/
Examiner, Art Unit 1619
/ANNA R FALKOWITZ/Primary Examiner., Art Unit 1600
