DETAILED ACTION
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 .
Specification
The abstract of the disclosure is objected to because it is presented with more information that only the abstract text. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Objections
Claim 16 objected to because of the following informalities:
Claim 16 does not have a period at the end of the claim.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 11 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 11 recited “polysiloxane (Sylcoat)” which renders the claim indefinite because it is unclear whether the limitations in parenthesis is part of the claimed invention. See MPEP § 2173.05(d).
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 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.
1) Claims 1-6, 8-15, 19 and 25-27 are rejected under 35 U.S.C. 103 as being unpatentable over Kaiser et al. (WO 2019/173723 A1, publication date 09/12/2019; cited in IDS 07/06/2023) and Sivik et al. (WO 00/71240 A1, publication date 11/30/2000), as evidenced by Chemical Book (Safflower oil, Chemical Book, 2023 [retrieved 08/28/2025], https://www.chemicalbook.com/ChemicalProductProperty_EN_CB2273776.htm).
Kaiser discloses plant cuticle supplements and methods of their use [abstract], which may be non-aqueous (i.e., instant claim 5) [p. 8, line 2]. The compositions of the plant cuticle supplements “include preservatives, swelling components, thickening components, carbohydrate skeleton components, surfactants, organic solvents, among others” (emphasis added) [p. 7, lines 20-22]. According to Kaiser useful carbohydrate skeleton components include microcrystalline cellulose (i.e., instant claim 2) and pectin (i.e., instant claim 4) [p. 16, lines 9 and 12]. Useful surfactants include lecithin, polysorbate 80 and Slycoat (i.e., instant claims 10-12) [p. 10, lines 5-7] and useful organic solvents include ethanol (i.e., instant claim 6) [p. 8, line 13]. In some embodiments the composition further comprises glycerol monostearate as a bloom effecting component (i.e., instant claim 9) [p. 14, lines 25-24], and an emollient such as glycerol and safflower oil (i.e., instant claims 13 and 15) [p. 14, lines 2 and 6]. Safflower oil comprises oleic fatty acids (i.e., C18 fatty acid) as evidence by Chemical Book at page 2, under “Uses.” Kaiser discloses the composition may comprise calcium bentonite and sodium bentonite [p. 17 line 21 and p. 22, line 1].
Kaiser does not disclose potassium bentonite.
Sivik relates to an agrochemical compositions [p. 69, para. 3]. Sivik discloses that smectite clays have swellable properties and typical smectite clays used compositions of the invention disclosed therein are bentonite clays [p. 30, para. 2]. Specifically, sodium and potassium bentonite clays are used as they are swellable [p. 30, para. 2].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected potassium bentonite as the swelling agent desired by Kaiser because Sivik discloses it is a suitable swelling agent in agrochemical compositions. One would have had an expectation of success because Kaiser discloses the composition may comprise sodium bentonite and Sivik teaches that sodium and potassium bentonite both provide swelling properties in an agrochemical composition.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated a non-aqueous plant cuticle supplement to comprise microcrystalline cellulose, safflower oil (C8-C20 fatty acid), polysorbate as non-ionic surfactant, lecithin as an amphoteric surfactant, a protic organic solvent such as ethanol, pectin, a preservative, glycerol monostearate, glycerol, and potassium bentonite.
Regarding instant claims 2 and 3, Kaiser discloses the carbohydrate skeleton may also be cellulose fibers between about 0.1 um and about 150 um [p. 15, lines 20-24].
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected cellulose fiber as the carbohydrate skeleton because Kaiser discloses it as a suitable option. See MPEP 2144.07. Additionally, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). In the present case, the prior art range for the cellulose fiber overlaps with the instantly claimed range (0.1 um to 1000 um) and a prima facie case of obviousness exists. Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to formulate the composition taught by Kaiser and Sivik to comprise cellulose fibers that fall within the instantly claimed range.
Regarding instant claim 19, Kaiser discloses that one aspect of the invention includes “an aqueous composition comprising the plant cuticle supplement of the disclosure in an amount ranging from about 0.1 % to about 10% by volume” [p. 3, lines 1-3].
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). In the present case, the amount of plant cuticle composition diluted in water overlaps with the instantly claimed range (0.01% to 10% by volume) and a prima facie case of obviousness exists.
Regarding instant claim 25, Kaiser discloses that “[i]n yet another aspect, provided herein is a method of treating a plant or a plant part, comprising: contacting the plant or a plant part with the aqueous composition of the disclosure, wherein upon drying of the composition an exogenous film is formed on the plant or a plant part” (i.e., an exogenous film) [p. 3, lines 4-7].
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have formed an exogenous film with the aqueous composition taught by Kaiser and Sivik because Kaiser discloses it as a suitable use of the composition. See MPEP 2144.07.
Regarding instant claim 26, Kaiser discloses that “[i]n yet another aspect, disclosed herein is a method of reducing water consumption by a plant comprising contacting the plant with the aqueous compositions comprising plant cuticle supplement of the disclosure, wherein upon drying of the composition an exogenous film is formed on the plant thereby reducing water consumption by the plant” [p. 3, lines 13-16].
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have applied the aqueous composition taught be Kaiser and Sivik to a plant part to reduce water consumption because Kaiser discloses it as a suitable method. See MPEP 2144.07.
Regarding instant claim 27, Kaiser discloses that “[i]n other embodiments, the invention provides a method of reducing egg laying of D. suzukii in a plant comprising contacting the plant with the aqueous compositions comprising the cuticle supplement disclosed herein, wherein upon drying of the composition an exogenous film is formed on the plant thereby reducing egg laying of D. suzukii in the plant” [p. 22, lines 20-24].
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have applied the aqueous composition taught be Kaiser and Sivik to a plant part to reduce the egg laying of D. suzukii because Kaiser discloses it as a suitable method. See MPEP 2144.07.
2) Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Kaiser et al. (WO 2019/173723 A1, publication date 09/12/2019; cited in IDS 07/06/2023) and Sivik et al. (WO 00/71240 A1, publication date 11/30/2000), as evidenced by Chemical Book (Safflower oil, Chemical Book, 2023 [retrieved 08/28/2025], https://www.chemicalbook.com/ChemicalProductProperty_EN_CB2273776.htm), as applied to claim 1 above, and further in view of Beltrup et al. (DE 102007020977 A1, publication date 11/06/2008; citing the English machine translation).
Kaiser and Sivik, which are taught above, differ from the instant claims insofar as they do not teach beta-apo-8’carotenal. Kaiser does however teach that the composition may further comprise an antioxidant to protect post-harvest fruit and vegetables from browning caused by oxidation [p. 11, line 15]. Examples of specific antioxidants include beta-carotene, ascorbic acid and its salts of calcium, sodium, palmitate and stearate [p. 11, lines 19-25].
Beltrup discloses a process of treating food, such as fruits and vegetables, comprising contacting the food with an antioxidant solution [abstract], to prevent browning [p. 16, para. 1]. Beltrup discloses that suitable antioxidants for such a purpose include beta-carotene, ascorbic acid, calcium ascorbate, sodium ascorbate, ascorbyl palmitate and stearate in addition to beta-apo-8’-carotenal [p. 10, para. 1].
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have simply substituted the beta-carotene, ascorbic acid, calcium ascorbate, sodium ascorbate, ascorbyl palmitate or ascorbyl stearate of Kaiser for the beta-apo-8’-carotenal of Beltrup because they were all known to prevent browning when applied to fruits and vegetables. One would have had an expectation of success because Beltrup discloses each antioxidant simply performs the same function of preventing browning when applied to fruits and vegetables. Thus, the skilled artisan would have been motivated to have substituted the antioxidant beta-apo-8’-carotenal of Beltrup in place of an antioxidant of Kaiser (e.g., beta-carotene) with a reasonable expectation of success. The simple substitution of one known element (e.g., the beta-apo-8’-carotinal of Beltrup) in place of another (e.g., the beta-carotene of Kaiser) in order to achieve predictable results (antioxidant to prevent browning of fruits and vegetables) is prima facie obvious. See MPEP 2143, Exemplary Rationale B.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated the compositions taught by Kaiser and Sivik to comprise beta-apo-8’-carotenal as an antioxidant.
3) Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Kaiser et al. (WO 2019/173723 A1, publication date 09/12/2019; cited in IDS 07/06/2023) and Sivik et al. (WO 00/71240 A1, publication date 11/30/2000), as evidenced by Chemical Book (Safflower oil, Chemical Book, 2023 [retrieved 08/28/2025], https://www.chemicalbook.com/ChemicalProductProperty_EN_CB2273776.htm), as applied to claim 1 above, and further in view of Suzuki et al. (US 8,986,722 B2, date of patent 05/24/2015) and “Kaiser 2” et al. (US 8,752,328, date of patent 06/17/2014), as evidenced by CIGuide (Cosmetic Ingredients and Complexes Glossary, 2024 [retrieved 08/28/2025], https://ci.guide/polymers/polyglyceryl-10-decaoleate).
Kaiser and Sivik, which are taught above, differ from the instant claims insofar as they do not teach decaglyceryl-10-oleate. Kaiser does disclose that the film provided by the composition is meant to serve as a barrier against pests [p. 1, lines 11-13], and teaches the composition should be safe for human consumption [p. 37, claim 34].
Suzuki’s disclosure is “to provide a pest control composition capable of exerting a high effect on pests such as spider mites and aphids even at low concentration using a food/food additive with high safety to the human body and the environment” [abstract]. Suzuki discloses the composition may be applied to leaf surfaces [col. 15, line 41] to inhibit the movement of small pests leading the physical pest death [col. 5, lines 33-29]. The pest control composition comprises a polyglycerol fatty acid ester, such as decaglycerol decaoleate [col. 7, line 67], and nonionic surfactant [col. 3, lines 21-23].
Kaiser 2 discloses “compositions that can be used to make films to increase the efficiency of producing plants and plant part. The films are designed in part to be environmentally friendly and/or edible” [abstract]. Kaiser discloses that these films may comprise plasticizing components which lend flexibility to the film to expand as the fruit grows [col. 8, lines 60-64]. Examples of such components include polyglyceryl-fatty acid esters [col. 9, line 1].
One of ordinary skill in the art would have understood that decaglycerol decaoleate is decaglyceryl-10-oleate as evidenced by CIGuide at page 1.
"It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." (see MPEP 2144.06 I, quoting In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980)).
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined the composition of Suzuki with the composition taught by Kaiser and Sivik because they are both useful for the same purpose; protecting plants from pests. One would have been motivated to do so in order to improve the pest protection of the composition taught by Kaiser and Sivik, by providing the small pest protection disclosed by Suzuki. One would have had a reasonable expectation of success because the composition disclosed by Suzuki is safe for human consumption, as desired by Kaiser, and provides protection by physically coating the plant, like Kaiser. Additionally, one would have had an expectation of success because Kaiser 2 discloses polyglyceryl-fatty acid esters are known plasticizers for film forming compositions used to promote plant growth, and provide the desirable effect of flexible films. Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to formulated the composition taught by Kaiser and Sivik to further comprise decaglyceryl-10-oleate.
4) Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Kaiser et al. (WO 2019/173723 A1, publication date 09/12/2019; cited in IDS 07/06/2023) and Sivik et al. (WO 00/71240 A1, publication date 11/30/2000), as evidenced by Chemical Book (Safflower oil, Chemical Book, 2023 [retrieved 08/28/2025], https://www.chemicalbook.com/ChemicalProductProperty_EN_CB2273776.htm), as applied to claim 1 above, and further in view of Beltrup et al. (DE 102007020977 A1, publication date 11/06/2008; citing the English machine translation), “Kaiser 2” et al. (US 8,752,328, date of patent 06/17/2014) and Suzuki et al. (US 8,986,722 B2, date of patent 05/24/2015), as evidenced by CIGuide (Cosmetic Ingredients and Complexes Glossary, 2024 [retrieved 08/28/2025], https://ci.guide/polymers/polyglyceryl-10-decaoleate).
Kaiser and Sivik, which are taught above, differ from the instant claims insofar as they do not teach beta-apo-9’-carotenal and decaglyceryl-10-oleate. Kaiser does however teach that the composition may further comprise an antioxidant to protect post-harvest fruit and vegetables from browning caused by oxidation [p. 11, line 15]. Examples of specific antioxidants include, among others, beta-carotene, ascorbic acid and its salts of calcium, sodium, palmitate and stearate [p. 11, lines 19-25]. Kaiser also discloses that the film provided by the composition is meant to serve as a barrier against pests [p. 1, lines 11-13], and teaches the composition should be safe for human consumption [p. 37, claim 34]. Finally, kaiser discloses the composition may comprise palm oil in addition to safflower oil [p. 13, line 25].
Beltrup discloses a process of treating food, such as fruits and vegetables, comprising contacting the food with an antioxidant solution [abstract], to prevent browning [p. 16, para. 1]. Beltrup discloses that suitable antioxidants for such a purpose include beta-carotene, ascorbic acid, calcium ascorbate, sodium ascorbate, ascorbyl palmitate and stearate in addition to beta-apo-8’-carotenal [p. 10, para. 1].
Beltrup does not disclose decaglyceryl-10-decaoleate.
Suzuki’s disclosure is “to provide a pest control composition capable of exerting a high effect on pests such as spider mites and aphids even at low concentration using a food/food additive with high safety to the human body and the environment” [abstract]. Suzuki discloses the composition may be applied to leaf surfaces [col. 15, line 41] to inhibit the movement of small pests leading the physical pest death [col. 5, lines 33-29]. The pest control composition comprises a polyglycerol fatty acid ester, such as decaglycerol decaoleate [col. 7, line 67], and nonionic surfactant [col. 3, lines 21-23].
Kaiser 2 discloses “compositions that can be used to make films to increase the efficiency of producing plants and plant part. The films are designed in part to be environmentally friendly and/or edible” [abstract]. Kaiser discloses that these films may comprise plasticizing components that allows flexibility to the film to expand as the fruit grows [col. 8, lines 60-64]. Examples of such components include polyglyceryl-fatty acid esters [col. 9, line 1].
One of ordinary skill in the art would have understood that decaglycerol decaoleate is decaglyceryl-10-oleate as evidenced by CIGuide at page 1.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have simply substituted the beta-carotene, ascorbic acid, calcium ascorbate, sodium ascorbate, ascorbyl palmitate or ascorbyl stearate of Kaiser for the beta-apo-8’-carotenal of Beltrup because they were known to prevent browning when applied to fruits and vegetables. One would have had an expectation of success because Beltrup discloses each antioxidant simply performs the same function of preventing browning when applied to fruits and vegetables. Thus, the skilled artisan would have been motivated to have substituted the antioxidant beta-apo-8’-carotenal of Beltrup in place of an antioxidant of Kaiser (e.g., beta-carotene) with a reasonable expectation of success. The simple substitution of one known element (e.g., the beta-apo-8’-carotinal of Beltrup) in place of another (e.g., the beta-carotene of Kaiser) in order to achieve predictable results (antioxidant) is prima facie obvious. See MPEP 2143, Exemplary Rationale B.
Additionally, "[i]t is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." (see MPEP 2144.06 I, quoting In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980)).
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have combined the composition of Suzuki with the composition taught by Kaiser and Sivik because they are both useful for the same purpose; protecting plants from pests. One would have been motivated to do in order to improve the pest protection of the composition taught by Kaiser and Sivik by providing the small pest protection disclosed by Suzuki. One would have had a reasonable expectation of success because the composition disclosed by Suzuki is safe for human consumption, as desired by Kaiser and like Kaiser provides protection by physically coating the plant. Additionally, one would have had an expectation of success because Kaiser 2 discloses polyglyceryl-fatty acid esters are known plasticizers for film forming compositions used to promote plant growth and that they provide the desirable effect of a flexible film. Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to formulated the composition taught by Kaiser and Sivik to further comprise decaglyceryl-10-oleate.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to formulated the composition taught by Kaiser and Sivik, comprising ethanol, isopropyl myristate polysorbate 80, safflower oil, glycerol, lecithin, palm oil, glycerol monostearate, microcrystalline cellulose pectin slycoat and potassium bentonite, to further comprise beta-apo-8’-carotenal and decaglyceryl-10-oleate.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-17, 19 and 25-26 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-27 of U.S. Patent No. 8,752,328 B2 in view of the specification ‘328, Kaiser et al. (WO 2019/173723 A1, publication date 09/12/2019; cited in IDS 07/06/2023) and Sivik et al. (WO 00/71240 A1, publication date 11/30/2000), and further in view of Beltrup et al. (DE 102007020977 A1, publication date 11/06/2008; citing the English machine translation) and Suzuki et al. (US 8,986,722 B2, date of patent 05/24/2015), as evidenced by CIGuide (Cosmetic Ingredients and Complexes Glossary, 2024 [retrieved 08/28/2025], https://ci.guide/polymers/polyglyceryl-10-decaoleate).
The claims of ‘328 disclose an exogenous film formed by an aqueous composition [claim 1] which may comprise cellulose [claim 22, line 50], vegetable oil [claim 22, line 24], lecithin [claim 22, line 38], isopropyl myristate [claim 24, col. 27, lines 3-4], Polysorbate 80 [claim 24, col. 27, line 12], ethanol [claim 26, line 24], glyceryl monostearate [claim 24, col. 27, line 17] and a preservative [claim 26, line 18].
The claims of ‘328 do not disclose a bentonite, pectin, cellulose microfibers, microcrystalline cellulose, a non-aqueous solution, beta-apo-8’-carotenal, glycerol, safflower oil, palm oil, decaglyceryl-10-oleate and slycoat.
The specification of ‘328 discloses the composition may comprise pectin [col 12, lines 28], bentonite [col. 12, line 51], palm oil [col 10, line 30], polyglyceryl-fatty acid esters [col. 9, line 1] and an antioxidant [col. 5, line 30].
The specification of ‘328 does not disclose a cellulose microfibers, microcrystalline cellulose, a non-aqueous solution, beta-apo-8’-carotenal, glycerol, safflower oil, decaglyceryl-10-oleate and slycoat.
Sivik relates to an agrochemical compositions [p. 69, para. 3]. Sivik discloses that potassium bentonite is suitable for compositions which may be used for agriculture [p. 30, para. 2 and p. 69, para. 3].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected potassium bentonite as the bentonite desired by ‘328 because Sivik discloses it is a suitable bentonite in agrochemical compositions.
Furthermore, Kaiser discloses that microfibrous and microcrystalline cellulose [p. 15, lines 11-13], safflower oil, glycerol [p. 35, claims 11-12] and slycoat [p. 24, line 1] are suitable for exogenous film forming compositions. Kaiser also discloses that exogenous film forming compositions may be non-aqueous [p. 34, claim 2].
Kaiser does not disclose a beta-apo-8’-carotenal and decaglyceryl-10-oleate.
Beltrup discloses a process of treating food, such as fruits and vegetables, comprising contacting the food with an antioxidant solution [abstract], to prevent browning [p. 16, para. 1]. Beltrup discloses that suitable antioxidants for such a purpose include beta-apo-8’-carotenal [p. 10, para. 1].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected beta-apo-8’-carotenal of Beltrup as the antioxidant desired by ‘328 because Beltrup discloses it is suitable for that purpose.
Beltrup does not disclose decaglyceryl-10-decaoleate.
Suzuki discloses a composition “to provide a pest control composition capable of exerting a high effect on pests such as spider mites and aphids even at low concentration using a food/food additive with high safety to the human body and the environment” [abstract]. Suzuki discloses the composition may be applied to leaf surfaces [col. 15, line 41] to inhibit the movement of small pests leading the physical pest death [col. 5, lines 33-29]. The pest control composition comprises a polyglycerol fatty acid ester, such as decaglycerol decaoleate [col. 7, line 67], and nonionic surfactant [col. 3, lines 21-23].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected decaglycerol decaoleate of Suzuki as the polyglyceryl-fatty acid ester desired by ‘328 because Suzuki discloses it is suitable for that purpose.
Conclusion
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/C.T.W./ Examiner, Art Unit 1612
/WALTER E WEBB/ Primary Examiner, Art Unit 1612