FINAL 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 Claims
Receipt is acknowledged of amendment and remarks filed on 17 April 2026.
Claims 2, 6 and 9 have been amended.
Claims 4-5 and 19-20 remains withdrawn from consideration.
Claims 1-3 and 6-18 are examined herein to the extent that the combustion product or an alkaline material is incinerated poultry litter, e.g., applicant's elected species.
Rejections Withdrawn
The rejection the claims under U.S.C. 112(d), as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, is withdrawn in view of the claim amendments filed 17 April 2026.
Rejections Maintained
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 1-3 and 6-18 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, 3, 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 12-17, 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 and 12-17, 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 (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 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 (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).
Response to Arguments
Applicant’s first argument is that Boekmann nor Jacobs support the conclusion that it is prima facie obvious to apply the granules of Tomohide as a wall to protect plants from threatening snails and slugs because the ash or powder form of the materials of Boekmann and Jacobs, respectively, are important for their effectiveness. Applicant argues that neither Boekmann or Jacobs suggests that such effectiveness would be retained if the materials were granulated. Applicant argues that Jacobs is very specific in noting that lime is required to deter slugs and does not suggest that any alkaline material would be similarly effective. Applicant argues that given the physical differences in the materials of Boekmann and Jacobs (ash and powder, respectively) and Tomohide (granules), one skilled in the art would not have found it obvious that the granules of Tomohide could be used effectively as a barrier to mollusc. Applicant argues that modifying either Boeckmann or Jacobs to use their respective material in granular form would change their principles of operation. Applicant argues that neither reference provides motivation to use Tomohide’s material as a barrier for molluscs.
Applicant's arguments filed on 17 April 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 (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. 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) taught by Tomohide are dry like wood ash and act as a fertilizer like the wood ash, which Boekmann teaches are the properties of wood ash and the reason to use them as a barrier, and further granule of chicken manure ash (e.g., incinerated poultry litter) taught by Tomohide is alkaline, which Jacobs teaches is favorable for soil of hostas and vegetables and are detested by slugs and snails that are physiologically acidic. Therefore, one of ordinary skill in the art would be motivated to use the granule of chicken manure ash (e.g., incinerated poultry litter) taught by Tomohide as a barrier to protect plants including hostas and vegetables from snails and slugs and would have reasonably expected success.
Applicant argues that one skilled in the art would not have a reasonable expectation that the granular material of Tomohide would provide a mollusc barrier that outperforms current products, as demonstrated by the data provided in the instant specification.
Applicant's arguments filed on 17 April 2026 have been fully considered but they are not persuasive. In response, Applicant is reminded that objective evidence which must be factually supported by an appropriate affidavit or declaration to be of probative value includes evidence of unexpected results, commercial success, solution of a long-felt need, inoperability of the prior art, invention before the date of the reference, and allegations that the author(s) of the prior art derived the disclosed subject matter from the applicant. See, for example, In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984). The arguments of counsel cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965). Examples of attorney statements which are not evidence and which must be supported by an appropriate affidavit or declaration include statements regarding unexpected results, commercial success, solution of a long-felt need, inoperability of the prior art, invention before the date of the reference, and allegations that the author(s) of the prior art derived the disclosed subject matter from the applicant.
Thus, for the reasons of record and for the reasons presented above claims 1-3 and 6-18 are rejected under 35 U.S.C. 103(a).
Conclusion and Correspondence
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 extension fee 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 date of this final action.
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
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