DETAILED ACTION
Status of the Application
Receipt is acknowledged of Applicants’ Amendments and Remarks, filed 7 January 2026, in the matter of Application N° 18/248,469. Said documents have been entered on the record. The Examiner further acknowledges the following:
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1-44 are pending, where claims 1-31 remain withdrawn from consideration.
No claims have been added or canceled.
Claim 32 has been amended to add the limitation reciting “wherein the radical source releases a radical that reacts with ozone that has contacted and deactivated the pathogen, thereby detoxifying the ozone that has contacted and deactivated the pathogen”. The amendment is supported by the originally-filed disclosure.
No new matter has been added.
Thus, claims 32-44 continue to represent all claims currently under consideration.
Information Disclosure Statement
No new Information Disclosure Statements (IDS) have been filed for consideration.
Maintained Rejections
The following rejections are maintained from the previous Office Correspondence dated 7 October 2025 since the art that was previously cited continues to read on the amended and previously recited limitations.
Claim Rejections - 35 USC §103
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 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.
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. Applicants are 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 32-44 are rejected under 35 U.S.C. 103 as being unpatentable over Hnat et al. (WO 2006/079109 A2).
The instantly claimed invention is directed to a “method for disposing a pathogen by an antipathogenic agent” comprising a radical source and ozone.
The Examiner broadly and reasonably interprets the preamble as reciting a method for disposing of a pathogen comprising the application of an antipathogenic agent, wherein said agent comprises a radical source and ozone. [emphasis added]
The positively recited steps of claim 32 further claim comprise:
releasing the ozone and radical source simultaneously or separately;
“preparing” the agent by the release;
contacting at least one material (i.e., ozone, radical source, or antipathogenic agent) with at least one “target” selected from the group consisting of an object containing a pathogen or an environment containing a pathogen. [emphasis added]
The radical source is further recited as being selected from a halogenous acid (e.g., chlorous acid), a halite ion, and a halite, and as releasing a radical that reacts with ozone that has contacted and deactivated the pathogen, thereby detoxifying the ozone that has contacted and deactivated the pathogen.
The Examiner continues to broadly and reasonably interpret the claimed method as reciting a method of reducing the presence of a pathogen, either on a surface or in a generic environment, comprising applying an antipathogenic agent comprising a radical source (e.g., chlorous acid) and ozone to said surface.
Hnat discloses an antimicrobial, antiviral, and antipathogenic composition which combines, in various forms, an oxidizing agent and a transition metal ion (see e.g., Abstract; claims).
Claim 1 of the reference further defines the oxidizing agent of the antipathogenic composition as being selected from such combinations as ozone and hypochlorous acid.
The transition metal ion is further defined as being a redox-active transition metal ion or “catalyst” (see pg. 10, lines 14-17), such as Ca, Cu, Fe, Zn, or Ag ions (see e.g., claim 1).
The reference discloses preparing such pharmaceutical formulations as sprays and mists (see e.g., pg. 10, lines 7-8). Such formulations are further disclosed as being used as sprays to decontaminate surfaces (see e.g., pg. 23, lines 19-20).
The foregoing is considered to teach the limitations of instant claims 32-37, 43, and 44.
The limitations of claim 38 recite that at least one material selected from the radical source and ozone are dissolved in a solvent. Claim 1, for instance, teaches that the composition comprising the oxidizing agent and transition metal ion are formed as an aqueous solution.
The Examiner additionally submits that to form an aqueous solution comprising ozone would produce ozone water or ozonated water, thereby meeting the limitations of instant claim 39.
The foregoing disclosure is also considered to read on the limitations of instant claim 40 insomuch as producing an aqueous composition comprising ozone reads on “supplying” ozone.
Regarding the limitations of instant claim 41, the Examiner respectfully advances that the foregoing disclosure of formulating an aqueous composition comprising ozone meets the recitation of the claim. The instant claim recites narrows the previous limitation of supplying (providing) ozone to a manufacturing step of generating ozone. Here the Examiner submits that this limitation is not considered to contribute to the overall patentability of the claimed method of treatment since the dependent step is directed to a product-by-process limitation. See MPEP §2113. Since the instantly claimed invention is directed to a method of using the administered composition, recited steps for manufacturing the administered composition are not considered to be at issue.
Lastly, the limitations of instant claim 42 recite that the radical source is stored in a radical source container. The Examiner again looks to the foregoing teachings and submits that the production of an aqueous solution comprising the oxidizing agent (e.g., ozone and hypochlorous acid) and a transition metal ion (catalyst), for instance, as a spray or mist composition, would empirically necessitate that it be contained, owing to the fact that it is a liquid to be dispensed.
Based on the foregoing teachings of the reference, the Examiner submits that a person of ordinary skill in the art would have had a reasonable expectation of success at producing an antipathogenic composition comprising ozone, a chlorous acid (e.g., hypochlorous acid), and a catalyst (i.e., transition metal ion), and arriving at the recited method of for disposing of a pathogen. The reference is considered to provide clear disclosure that such a composition may be formulated as an aqueous solution and dispensed or administered to a surface (see e.g., pg. 8, line 28 to pg. 9, line 7; Abstract). Administration is disclosed as being in the form of a spray or mist as discussed above.
Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, and absent a clear showing of evidence to the contrary.
Response to Arguments
Applicants’ arguments with regard to the rejection of claims 32-44 under 35 USC 103(a) as being unpatentable over the combined teachings of Hnat et al. have been fully considered, but they are not persuasive.
Applicants traverse the rejection stating that the amended invention as presented in claim 32, “allow[s] ozone to first contact a deactivate pathogens, and then subsequently [react] that ozone with a radical released from the radical source, whereby the ozone is detoxified and converted, e.g., into a non-toxic species (e.g., oxygen).
The Examiner, in response, respectfully disagrees and maintains the rejection, in spite of the amendment to the claim, for the reasons already of record.
To the contrary, claim 32 is not limited to sequential application of the radical source and ozone. Furthermore, the method comprises the application of an antipathogenic agent which is further recited as comprising (i.e., minimally requiring the presence of) both a radical source and ozone. The claim then sets recites “contacting at least one material selected from the group consisting of a combination of the ozone and the radical source and the prepared antipathogenic agent with at least one target selected from the group consisting of an object containing the pathogen…”
Thus, as presently recited, the claimed method positively recites contacting the pathogen-laden material with an antipathogenic agent. The former option of the contacting step is a “combination of the ozone and the radical source” which the claim clearly establishes as the two required elements in forming the latter recited antipathogenic agent. Thus, the Examiner continues to broadly and reasonably interpret as a method comprising the application of an antipathogenic agent to a material containing the pathogen.
Resulting from this, the Examiner broadly and reasonably interprets the added language as reciting an effect that results from contacting the antipathogenic agent with the infected material, and as the contacting agent comprises both radical source and ozone, the deactivation and detoxifying steps are considered to occur as a result of their having been combined in the applied agent.
Applicants cited Reference Examples are noted, as are the purported advantageous effect, all of which are based on the non-theoretical concept that halogenous radical sources such as a chlorous acid readily react with ozone to detoxify it to oxygen. The Examiner does not disagree and submits that such a chemical reaction is very well-established in the state of the art.
Addressing the rejection of record, Applicants assert that the rejection does not include the detoxifying of ozone after the ozone deactivates the pathogen.
The Examiner acknowledges this point and agrees with it, in part, conceding that the reference does not expressly disclose detoxifying of ozone once it has reacted with the pathogen it treats. However, the reference does disclose combining the two components to produce various applicable compositions (e.g., sprays and mists) which are further applied to surfaces for the purposes of decontaminating them. As the two components are combined in an aqueous carrier, for instance, the ordinarily skilled artisan would reasonably expect that the ozone reacts with the halogenous acid species to produce non-toxic oxygen.
Applicants’ interpretation of the teachings of Hnat are acknowledged. However, contrary to the position taken, the Examiner respectfully submits that the amended invention of claim 32 is not limited to, and therefore, does not require sequential application of the antipathogenic agent-forming elements.
The filed arguments are not commensurate in scope with the claimed invention.
Applicants’ arguments, for the above reasons, are found unpersuasive. Said rejection is therefore maintained.
All claims under consideration remain rejected; no claims are allowed.
Conclusion
THIS ACTION IS MADE FINAL. Applicants are 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.
Correspondence
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Jeffrey T. Palenik whose telephone number is (571) 270-1966. The Examiner can normally be reached on 9:30 am - 7:00 pm; M-F (EST).
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, Robert A. Wax can be reached on (571) 272-0623. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Jeffrey T. Palenik/
Primary Examiner, Art Unit 1615