DETAILED ACTION
Claims 1-11 were subject to restriction requirement mailed on 01/16/2026.
Applicant filed a response, and elected Group I, claims 1-10, and withdrew claim 11, without traverse on 03/10/2026.
Claims 1-11 are pending, and claim 11 is withdrawn.
Claims 1-10 are rejected.
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-10, in the reply filed on 03/10/2026 is acknowledged.
Claim 11 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 03/10/2026.
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.
Claim 7 is 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 7, line 2, recites a phrase “heavy burned magnesium oxide”. However, it is unclear what the phrase refers to, as it is unclear what is considered heavy burned. The examiner interprets that the phrase refers to burned magnesium oxide.
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.
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. Applicant is 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 1-6 and 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Takeshi et al., JP 2011057265A (Takeshi) (provided in IDS received on 09/19/2023).
The examiner has provided a machine translation of Takeshi et al., JP 2011057265A. The citation of the prior art set forth below refers to the machine translation.
Regarding claims 1-2, 4, 6 and 8-9, Takeshi teaches an oxygen scavenger package or the like capable of rapidly absorbing free oxygen; in the oxygen scavenger package including an oxygen scavenger composition, the oxygen scavenger composition comprises 0.1-20 parts by mass of sodium halide, and 0.01-130 parts by mass of activated carbon, which are blended based on 100 parts by mass of iron powder (Takeshi, Abstract), which encompasses or overlaps the ranges of the presently claimed.
Takeshi further teaches a filler may be further added to the oxygen scavenger composition for the purpose of improving fluidity and removing by-products. Specific examples of fillers include magnesium oxide (reading upon an alkaline agent) (Takeshi, page 4, 1st paragraph).
Given that Takeshi discloses the oxygen scavenger composition that overlaps the presently claimed oxygen scavenger powder, including magnesium oxide, it therefore would be obvious to one of ordinary skill in the art, to use the oxygen scavenger composition, which is both disclosed by Takeshi and encompassed within the scope of the present claims and thereby arrive at the claimed invention.
Further regarding claims 1 and 5, given that Takeshi teaches magnesium oxide, which is identical to the alkaline agent of the present invention (claim 6), therefore, it is clear that the magnesium oxide of Takeshi would necessarily and inherently meet the claimed limitations of wherein the alkaline agent has a solubility of less than 0.1 g in 100 g of water at 25°C, and an aqueous dispersion of the alkaline agent has a pH of from 8 to 12 at 25°C; and wherein the aqueous dispersion of the alkaline agent has a pH of from 9.5 to 11.5 at 25°C.
Regarding claim 3, as applied to claim 1, Takeshi further teaches a filler may be further added to the oxygen scavenger composition for the purpose of improving fluidity and removing by-products. (Takeshi, page 4, 1st paragraph).
Although there are no disclosures on the amounts of filler, such as magnesium oxide, as presently claimed, it has long been an axiom of United States patent law that it is not inventive to discover the optimum or workable ranges of result-effective variables by routine experimentation. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003) ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages."); In re Boesch, 617 F.2d 272, 276 (CCPA 1980) ("[D]iscovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art."); In re Aller, 220 F.2d 454, 456 (CCPA 1955) ("[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation."). "Only if the 'results of optimizing a variable' are 'unexpectedly good' can a patent be obtained for the claimed critical range." In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (quoting In re Antonie, 559 F.2d 618, 620 (CCPA 1977)).
At the time of the invention, it would have been obvious to one of ordinary skill in the art to vary the amounts of filler, such as magnesium oxide, including over the amounts presently claimed, in order to achieve desired fluidity and/or removing by-products, and thereby arrive at the claimed invention.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Takeshi as applied to claim 6 above, and further in view of Zong et al., CN 110911774A (Zong) (provided in IDS received on 09/19/2023).
The examiner has provided a machine translation of Zong et al., CN 110911774A. The citation of the prior art set forth below refers to the machine translation.
Regarding claim 7, as applied to claim 6, Takeshi does not explicitly disclose wherein the magnesium oxide is at least one selected from the group consisting of heavy burned magnesium oxide and electrofused magnesium oxide.
With respect to the difference, Zong teaches adsorption powder for reducing oxygen content comprising iron powder, and chloride inorganic salt (Zong, Abstract). Zong specifically teaches the deoxidizing agent is electric melting magnesium sand (reading upon electrofused magnesium oxide) (Zong, page 3, 1st paragraph).
As Zong expressly teaches, the deoxidizing agent such as electric melting magnesium sand, increases the adsorption powder of compactness and also has the function of promoting oxygen consumption (Zong, page 3, 1st paragraph).
Zong is analogous art as Zong is drawn to adsorption powder for reducing oxygen content comprising iron powder, and chloride inorganic salt.
In light of the motivation of using electric melting magnesium sand (reading upon electrofused magnesium oxide) in an adsorption powder for reducing oxygen content, as taught by Zong, it therefore would have been obvious to a person of ordinary skill in the art to use electrofused magnesium oxide as the source of magnesium oxide of the oxygen scavenger composition of Takeshi, in order to increase the compactness of the powder and promote oxygen consumption, and thereby arrive at the claimed invention.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Takeshi as applied to claim 1 above, and further in view of Hatakeyama et al., US 4,996,068 (Hatakeyama) (provided in IDS received on 07/26/2024).
Regarding claim 10, as applied to claim 1, Takeshi teaches that the magnesium oxide is used as a filler for improving fluidity, i.e., it is clear that the magnesium oxide is a particle.
Takeshi does not explicitly disclose wherein the magnesium oxide has an average particle diameter of the particle is from 3 to 50 µm.
With respect to the difference, Hatakeyama teaches a deoxidizer package comprising a deoxidation composition including iron powder, a metal halide and a powder filler (Hatakeyama, Abstract). Hatakeyama specifically teaches example of the material suitable for use as the powder filler includes magnesia (Hatakeyama, column 8, 3rd paragraph); the powder filler has a particle size of 60 mesh (i.e., 250 µm) or finer (Hatakeyama, column 7, 5th paragraph).
As Hatakeyama expressly teaches, when the particle size of the powder filler exceeds 60 mesh, dispersion of the iron powder takes place only insufficiently because the iron powder particles are moved into the vacancies among the particles of the powder filler (Hatakeyama, column 7, 5th paragraph).
Hatakeyama is analogous art as Hatakeyama is drawn to a deoxidizer package comprising a deoxidation composition including iron powder, a metal halide and a powder filler.
In light of the motivation of controlling particle size of powder filler, such as magnesia, to 60 mesh (i.e., 250 µm) or finer, in a deoxidization composition, as taught by Hatakeyama, it therefore would have been obvious to a person of ordinary skill in the art to control the particle size of the magnesium oxide filler of the oxygen scavenger composition of Takeshi, in order to achieve sufficient dispersion of the iron powder and the magnesium oxide powder filler, and thereby arrive at a range that encompasses that of the presently claimed.
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELING ZHANG whose telephone number is (571)272-8043. The examiner can normally be reached Monday - Friday: 9:00am-5:00pm EST.
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/KELING ZHANG/
Primary Examiner
Art Unit 1732
Prosecution Insights