DETAILED ACTION
Status of Application
The Examiner acknowledges receipt of the amendments filed on 4/21/2026 wherein claim 23 has been amended
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 arguments filed 4/21/2026 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 1/23/2026.
Applicant’s arguments filed 4/21/2026 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 1/23/2026.
In regards to the 103 rejections, Applicant asserts the following:
A vapor cannot be reasonably considered a fog as a fog is considerably more dense than a vapor, less able to diffuse and aerosolized liquid droplets can settle on surfaces. In contrast, a vapor is a gas and as such interacts with the ambient air differently than would an aerosol or fog. A vapor rapidly diffuses and spreads with ambient air. Thus, the rejection does not suggest a formulation suitable for administration as a vapor as claimed (see page 7, 8 and 10 of response); and
Yildiztekin expressly states PMD is ineffective as a vapor and this would discourage one from using PMD as a vapor as it is ineffective in such a form (see pages 10-11 of response).
In response to A, Applicant appears to be arguing limitations which are not present in the claim, e.g. capable of diffusion, not settling on surfaces, density, etc. Regarding the argument that a vapor and fog are significantly different from one antoher and one of ordinary skill in the art would not consider one obvious over the other, the Examiner respectfully disagree. As noted in the previous Office Action, Perez-Diaz et al. (Water, 2017, 9, 807, 1-21) states that a fog is the vapor phase of a liquid (see pages 5, 6). The definition of ‘vapor’ according to Merriam-Webster is “diffused matter (such as smoke or fog) suspended floating in the air and impairing its transparency”. The totality of the evidence, e.g. Perez and Merriam-Webster, sufficiently supports the notion that a fog and vapor are overlapping. Merriam-Webster even identifies a ‘fog’ as a type of diffused matter representative of ‘vapor’. Thus, Saunders’s teaching of a fog obviates the vapor of the present claims. Arguments regarding the properties of mineral oil being incompatible with producing a vapor are considered unpersuasive as it has been established that a vapor and fog are synonymous.
In regards to B, Yildiztekin states that “since all herbal repellent oils including PMD (para-menthane diol) are volatile and they evaporate and lose their effects within minutes after they are sprayed, this poses problems for the application.” The diminishment of PMDs activity is an result of being “sprayed”, not “fogged”. It’s not clear if there is any comparability between the two. However, given that Yildiztekin is largely focused on spraying compositions containing PMD, it’s clear that the issue of diminished activity can be mitigated. Applicant argues that the way by which Yildiztekin overcomes the evaporation of the agent (nanoencapsulation) cannot be combined with Saunders. The Examiner respectfully disagrees. Applicant has provided no reason the PMD composition of Yildiztekin cannot be combined with Saunders to arrive at a pyrethrin and PMD containing composition other than a statement to such. However, arguments cannot take the place of evidence where evidence is required. The Examiner maintains that it would have been obvious to modify Saunders teaching as their composition may include insect repellents (see [0046]), and one of ordinary skill in the art would look to the prior art to identify effective insect repellent formulations, such as that of Yildiztekin, for combination with Saunders. See MPEP 2143(I)(A). Applicant’s arguments are not considered persuasive.
Maintained Rejections, of Record
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; of record) and Merriam-Webster: ‘vapor’, 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 ingredients such as auxillary agents and insect repellents (see [0046]).
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). Moreover, the definition of ‘vapor’ according to Merriam-Webster is “diffused matter (such as smoke or fog) suspended floating in the air and impairing its transparency”. 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; of record) and Merriam-Webster: ‘vapor’, 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
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 mailing date of this final action.
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.
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/KYLE A PURDY/Primary Examiner, Art Unit 1611
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