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 .
DETAILED ACTION
This office action is in reply to the application filed on 19 July 2023. Currently, claims 1-20 are pending.
Election/Restrictions
Applicant’s election without traverse of Group I, encompassing claims 1-14 in the reply filed on 17 December 2025 is acknowledged.
Applicant’s election without traverse of methyl anthranilate as the irritant and an anthraquinone compound as the repellent in the reply filed on 17 December 2025 is acknowledged.
Claims 4-5 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention or species, however there being no allowable generic or linking claim to the elected species.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 10 January 2024 was filed after the mailing date of the application on 19 July 2023. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3 and 6-13 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ahmad et al. (Potential of natural repellents methylanthranilate and anthraquinone applied on maize seeds and seedlings against house sparrow (Passer domesticus) in captivity, Braz. J. Biol. 2018, 78, 4, 667-672).
Ahmad discloses compositions designed to control avian species as a means to mitigate world-wide economic damage to crops and fruit orchards, utilizing a described, environmentally friendly composition of methyl anthranilate, as compared to claims 1-2 and 6, and anthraquinone, as compared to claims 1, 3 and 7-8, tested on house sparrows consuming maize seeds and seedlings.
Acetone was used as a suitable carrier as both compounds are described as being insoluble in water, with concentrations of 0.25%, 0.5%, 0.75%, and 1.0%, as compared to claims 1 and 9-13. Claims 9-12 further limit methyl anthranilate to 1,000-150,000 ppm and 1,000-15,000 ppm, converted to 0.1-15.0% and 0.1-1.5%, respectively, and anthraquinone to 100-5,000 ppm and 100-30,000, converted to 0.01-0.5% and 0.05-3.0%, respectively. 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) (The prior art taught carbon monoxide concentrations of "about 1-5%" while the claim was limited to "more than 5%." The court held that "about 1-5%" allowed for concentrations slightly above 5% thus the ranges overlapped.); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997) (Claim reciting thickness of a protective layer as falling within a range of "50 to 100 Angstroms” considered prima facie obvious in view of prior art reference teaching that "for suitable protection, the thickness of the protective layer should be not less than about 10 nm [i.e., 100 Angstroms]." The court stated that "by stating that ‘suitable protection’ is provided if the protective layer is ‘about’ 100 Angstroms thick, [the prior art reference] directly teaches the use of a thickness within [applicant’s] claimed range."). See also In re Bergen, 120 F.2d 329, 332, 49 USPQ 749, 751-52 (CCPA 1941) (The court found that the overlapping endpoint of the prior art and claimed range was sufficient to support an obviousness rejection, particularly when there was no showing of criticality of the claimed range). MPEP §2144.05. As such, claims 1-3 and 6-13 are anticipated by Ahmad and rejected.
Allowable Subject Matter
Claim 14 is objected to (see below) and recites allowable subject matter.
The following is a statement of reasons for the indication of allowable subject matter: a composition of a trigeminal nerve irritant being methyl anthranilate and an animal repellent being anthraquinone, where the ratio of methyl anthranilate to anthraquinone is 5:1 was not taught in the prior art in a 100% embodiment. The closest match is taught by Kim et al. (Non-lethal chemical bird aversion compositions, KR20030050331A, 2003) with a composition of methyl anthranilate of 5-40% w/w of the total composition and anthraquinone being 20-60% w/w., giving the closest ratio of 2:1.
Claim 14 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Summary
Claims 1-3 and 6-13 are rejected under 35 U.S.C. 102(a)(1). Claim 14 is objected to and is drawn to allowable subject matter. Claims 4-5 are withdrawn.
Conclusion
Claims 1-3 and 6-13 are rejected. Claims 4-5 are withdrawn. Claim 14 is objected to.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Allen Chao whose telephone number is (571)272-7001. The examiner can normally be reached Monday - Friday 0700-1300.
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/ALLEN CHAO/Examiner, Art Unit 1622
/JAMES H ALSTRUM-ACEVEDO/Supervisory Patent Examiner, Art Unit 1622