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
Previous Rejections
Applicants' arguments, filed 03/16/26, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
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.
Claims 1-14 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Saunders et al. (US PG Pub. 2013/0005688) in view of Yildiztekin (WO 2017/003395 A) and further in view of Parker et al. (US 2003/0138500) and Guerret et al. (WO 2023/194695 A1).
Saunders teaches an insecticidal composition that comprises pyrethrins and mineral oil (i.e., alkanes) (see abstract). Saunders teaches about 0.1-30% pyrethrins and about 50-99% mineral oil (see [(0007]). See MPEP 2144.05(1) regarding obviousness of overlapping ranges. Saunders composition may further comprise additional carriers or diluents, such as alcohols, esters, and other auxiliary ingredients (see [0044]). It is noted that Saunders teaches that their pest control composition may comprise surfactants (see [0019, 0044]). Sample 9 of Saunders teaches that isopropyl myristate may be included in the pest control composition in an amount of 25.39% by weight. Saunders teaching is sufficiently close to the claimed range that one would expect similar results. See MPEP 2144.05. 15.
Saunders fails to teach their composition as comprising p-menthane-3,8,-diol. Yildiztekin, like Saunders, is in the field of insect control formulations (see abstract), Yildiztekin includes para-menthane diol (PMD) as an insect repellent. PMD may be used in an amount of between 1-15%, such as 10% (see page 8) and can be included individually or in combination with other actives such as pyrethrin (see page 6).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Yildiztekin with Saunders such that Saunders further comprised PMD in an amount of 1-15% thus arriving at the claimed invention. Such a modification would provide the benefits of additional insect repellant to the insect control formulation of Saunders. One would reasonably expect success from such additions because Saunders already teaches additional ingredients such as alcohols, esters, and additional auxiliary agents may be added to its composition. See MPEP 2144.06(1) and MPEP 2143(1)(A)
Saunders does not teach use of antioxidant in the composition.
Parker describes pesticidal composition. The pesticidal compositions are to comprise insecticidal agents such as pyrethrins and an antioxidant, such as BHA and BHT, in an amount of between 0.001-2.0% by weight (see [0019]).
It would have been obvious to modify the composition of Saunders to include an antioxidant, such as BHT, in an amount such as that claimed with a reasonable expectation for success in providing antioxidant benefit to the insecticidal composition. See MPEP 2143(I)(A) which states that combining prior art elements according to known methods to yield predictable results is evidence of obviousness.
Saunders does not teach use of botanical solvent such as Isane Biolife 78 paraffin oil (a botanical solvent).
Guerret et al. discloses biological method for controlling biting insects, see title. The reference teaches a method for controlling biting insects, such as aphids, which comprises applying, onto plants to be treated, microcapsules containing one or more attractive substances which have an attractive effect on predators of said biting insects, see abstract. The reference teaches the first method of control is to use molecular, synthetic insecticides such as products based on cypermethrin, lambda-cyhalothrin or deltamethrin, or natural such as products based on pyrethrum for example. These molecules act by poisoning aphids according to various biochemical mechanisms. These products are very effective but by acting on a large scale on very large colonies of aphids, a selection of individuals less sensitive or even resistant to these insecticides takes place naturally, see state of the art section, 2nd paragraph. Guerret teaches use of Isane Biolife 78 paraffin solvent (a botanical solvent) in example 4. Example 7 discloses preparation of microcapsules of a mixture of aphid repellent and attractants for ladybugs and example 6 discloses preparation of spray mixture of the mixture prepared with Isane Biolife 78. The use of antioxidant, tert-butylhydroxyanisole (BHA) is taught in microcapsule preparation.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have utilized the Isane Biolife 78, solvent (botanical solvent as claimed) and antioxidant and natural such as products based on pyrethrum into the pest control composition of Sanders et al. One of ordinary skill would have been motivated to do so because substitution of one isoparaffin solvent with another would have provided predictable results of obtaining a pesticidal composition since the desired effect of Sanders et al. is to make a pesticidal composition and Guerret also teaches a pesticidal composition, one of ordinary skill would have added the known the Isane Biolife 78, for making a pesticidal composition with an expectation of obtaining similar results.
Applicant argues that Sauders relates to compositions and methods useful for insect control. Importantly, Saunders repeatedly highlights the inclusion of mineral oil in the composition, throughout the whole disclosure. All of Saunders Examples contain mineral oil. Saunders provides no guidance or suggestion for excluding mineral oil or replacing mineral oil with an alternative solvent. See Saunders, e.g., Summary, Examples 1-6, and claim 1. In contrast, the claimed composition contains a botanical solvent that is distinguishable from non-renewable petroleum-based solvents (e.g., mineral oil) by containing less than 50 ppm of aromatic compounds. See Specification, [0052]. A skilled artisan would not have been motivated to remove a key component (i.e., mineral oil) in Saunders' compositions and replace it with a botanical solvent that has a markedly different function and composition compared to mineral oil…..pesticidal composition.
These arguments are not persuasive. Saunders provide a pest control composition and teaches mineral oil (alkanes) and suggests use of additional carriers or diluents, such as alcohols, esters, and other auxiliary ingredients (see [0044]). Guerret discloses composition for controlling biting insects, see abstract and further teaches use of Isane Biolife 78 paraffin solvent (a botanical solvent) in example 4. Example 7 discloses preparation of microcapsules of a mixture of aphid repellent and attractants for ladybugs and example 6 discloses preparation of spray mixture of the mixture prepared with Isane Biolife 78. While Guerret teaches use of microcapsules, the open ended “comprising” language of instant claims do not preclude reading microcapsules comprising the botanical solvent. Additionally, it is disclosed in the reference that when water evaporates, the microcapsules release the attractants. Additionally, the instant claims do not recite direct association of the the solvent with the attractant, the claims require presence of the components and that is taught by the prior art. Therefore, substitution of one isoparaffin solvent Saunder’s with another would have provided predictable results of obtaining a pesticidal composition since the desired effect of Sanders et al. is to make a pesticidal composition and Guerret also teaches a pesticidal composition, one of ordinary skill would have added the known the Isane Biolife 78, for making a pesticidal composition with an expectation of obtaining similar results. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Action is final
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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SNIGDHA MAEWALL whose telephone number is (571)272-6197. The examiner can normally be reached Monday thru Friday; 8:30 AM to 5PM.
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/SNIGDHA MAEWALL/Primary Examiner, Art Unit 1612
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