DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of t/e previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12/5/2025 has been entered.
Status of Application
The Examiner acknowledges receipt of the amendments filed on 12/5/2025 wherein claims 19-22 have been cancelled and claims 23-26 have been added.
Claims 1, 4-18 and 23-26 are presented for examination on the merits. The following rejections are made.
Response to Applicants’ Arguments
Applicant’s cancellation of claims 19-22 filed 12/5/2025 renders moot their rejection made by the Examiner under 35 USC 103 over Saunders et al. (US 2013/0005688) in view of Yildiztekin (WO 2017/003395).
Applicant’s arguments filed 12/5/2025 regarding the rejection of claims 1, 4-7 and 10-17 made by the Examiner under 35 USC 103 over Saunders et al. (US 2013/0005688) in view of Yildiztekin (WO 2017/003395) have been fully considered but they are not found persuasive and is MAINTAINED for the reasons of record in the office action mailed on 9/4/2025.
Applicant’s arguments filed 12/5/2025 regarding the rejection of claims 8, 9 and 18 made by the Examiner under 35 USC 103 over Saunders et al. (US 2013/0005688) in view of Yildiztekin (WO 2017/003395) further in view of Parker et al. (US 2003/0138500) have been fully considered but they are not found persuasive and is MAINTAINED for the reasons of record in the office action mailed on 9/4/2025.
In regards to the 103 rejections, Applicant asserts the following:
Instant claims 1, 13 and 19 recites “vaporizable” compositions “for administration in the form of a vapor” and claims 1 and 13 recite “vaporized composition”. The “vaporized” element is a component of the claims that requires it be present in gaseous form. Saunders would not direct one to consider a pest repellent vapor or vaporizable composition as there would be no reasonable expectation of success given the known physical properties of mineral oil;
The references teach that their compositions are intended to kill pests. The instant claims require a mortality less than 10% whereas the prior art demonstrates high mortality.
In response to A, the Examiner notes that heating a formulation that contains mineral oil may result in ‘smoke’ and not vapor. However, the presence of smoke is presuming limitations which are not currently present or understood to be present regarding how the composition of the art may be used. Saunders teaches that their pest control composition may be applied in a variety of ways including as fogs or via fogging (see [0021, 0046, 0047, 0053]). A fog is a dense vapor phase of a substances liquid phase. Perez-Diaz et al. (Water, 2017, 9, 807, 1-21) is cited as evidence that a fog is the vapor phase of a liquid (see pages 5, 6). Thus, contrary to Applicant’s assertion that Saunders teaches away from a vapor, the prior art suggests that the composition may be used in a method which results in a phase of the composition such as that claimed, e.g. a vapor. However, it is still critical to remember that the claims are to a composition rather than a method of using the composition.
In regards to B, the claimed properties that “room entry of Aedes albopictus and Culex quinquefasciatus mosquitos is reduced by at least about 10% after exposure to the vaporized composition, and wherein 24 hours after exposure to the vaporized composition, Aedes albopictus and Culex quinquefasciatus mosquitos experience about <10% mortality” are related to the outcomes of the composition when used in a certain way, and not to the composition itself. The Examiner maintains that the resulting obvious composition would exhibit those same properties when used according to the compositions intended use.
Saunders’ teaching that the application of the composition inhibits 95% of target pests is not mitigating because the experimental data which show 95% mortality uses 5% pyrethrin in the composition and not 0.1-1% by weight like that claimed. Moreover, the insects were directly sprayed by the composition which is not a characteristic of the intended use and Saunders also does not include an insect repellent such as PMD. It is not clear what, if any, differences would result were the composition to contain between 0.1-1% pyrethrin with a repellent such as PMD and where the composition was applied to a general environment rather than direct application to the pest (like Saunders examples teaches). Applicants’ arguments are not considered persuasive.
Rejections
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, 4-6, 7, 10-17 and 19-26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Saunders et al. (US 2013/0005688; of record), evidenced by Perez-Diaz et al. (Water, 2017, 9, 807, 1-21), in view of Yildiztekin (WO 2017/003395; of record).
Saunders teaches an insect control compositions 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 instant claims 1, 6, 13, 14, 17, 19, 20 and 22). See MPEP 2144.05(I) 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 (see instant claims 5 and 16). Saunders teaching is sufficiently close to the claimed range that one would expect similar results. See MPEP 2144.05.
Saunders teaches that the composition may be applied as a fog (see [0021, 0046, 0047, 0053]). A fog is a dense vapor phase of a substances liquid phase. Perez-Diaz et al. (Water, 2017, 9, 807, 1-21) is cited as evidence that a fog is the vapor phase of a liquid (see pages 5, 6). Thus, Saunder’s composition may be ‘vaporizable’.
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) (see instant claims 4, 13, 15 and 19).
It would have been obvious to a person having ordinary skill in the art at the time the invention was filed 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(I) and MPEP 2143(I)(A).
Regarding the properties of room entry reduction, mortality, and landing inhibition (see instant claims 1, 10-13, 19 and 21), it is noted that, since the combined prior art teaches the same components in the same amounts, and Yildiztekin further teaches the combination of p-menthane diol and pyrethrin having a repellent effect, the same properties would be expected to be present in the combined compositions. Moreover, the properties of room entry reduction, mortality and landing inhibition are related to the intended use of the composition in that the outcomes require the composition to be used in a specific way. However, the intended use is not limiting to the composition itself but rather provides an outcome for when the composition is used in a particular way and so carried little patentable weight. See MPEP 2111.02(II). Regardless, such an outcome would be reasonably expected when such an intended use of using the obvious composition is performed.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Claims 8, 9 and 18 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Saunders et al. (US 2013/0005688; of record), evidenced by Perez-Diaz et al. (Water, 2017, 9, 807, 1-21), in view of Yildiztekin (WO 2017/003395; of record) as applied to claims 1, 4-6, 7, 10-17 and 19-26 above, and further in view of Parker et al. (US 2003/0138500).
It is noted that Saunders suggests that their composition may comprise an antioxidant.
However, Saunders fails to teach their composition as comprising an antioxidant in an amount of between about 0.5-1.5% by weight.
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]) (see instant claims 8, 9 and 18). 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.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Bethany Barham, can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free).
/KYLE A PURDY/Primary Examiner, Art Unit 1611