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 .
DETAILED ACTION
Applicant’s amendment in the reply filed on 6/12/26 is acknowledged, with the cancellation of Claim 6; and the additional newly added Claim 20. Claims 1-5, and 7-20 are pending. Claims 11-14, 18, and 19 are withdrawn. Claims 1-5, 7-10, 15-17, and 20 are examined on the merits Any rejection that is not reiterated is hereby withdrawn.
Claim Rejections –35 USC § 112, 2nd
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 4 remains rejected under 35 U.S.C. 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention.
This rejection is maintained for reasons of record set forth in the Office Action mailed out on 3/18/26, repeated below, slightly altered to take into consideration Applicant’s amendment filed on 6/12/26. Applicants’ arguments filed have been fully considered but they are not deemed to be persuasive.
Claim 4 recites the trademark/trade name “(MGK repellent 11)” (at line 13). Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112, second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. Applicant is required to provide full generic chemical names of the reagents that are used in the claims since IR3535[Symbol font/0xD2] or “MGK repellent 11” does not tell one of ordinary skills in the art exactly what is in the compounds and such trademark can change the compositions at any time.
Claim 4 (at line 24) recites parenthetical expression "(Spinosyn A)". The metes and bounds of Claim 4 are rendered vague and indefinite by the parenthetical recitation of "(Spinosyn A)” because it is unclear as to whether the limitation is part of the instantly claimed subject matter.
Therefore, the metes and bounds of claims are rendered vague and indefinite. The lack of clarity renders the claims very confusing and ambiguous since the resulting claims do not clearly set forth the metes and bounds of the patent protection desired.
All other cited claims depend directly or indirectly from rejected claims and are, therefore, also, rejected under U.S.C. 112, second paragraph for the reasons set forth above.
Claim Rejections –35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-5, 7, 8, 10, and 15 remain rejected, claim 20 is newly rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Mafra-Neto et al (US 2016128327 A1) (see IDS filed on 1/31/24).
This rejection is maintained for reasons of record set forth in the Office Action mailed out on 3/18/26, repeated below, slightly altered to take into consideration Applicant’s amendment filed on 6/12/26. Applicants’ arguments filed have been fully considered but they are not deemed to be persuasive.
Mafra-Neto et al teach a composition for affecting dipteran hematophagous parasites comprising: at least one dipteran semiochemical; and at least one phagostimulant (see claim 1), wherein the semiochemical is a sand fly repellant (thus for use as an arthropod control product by application directly on a target arthropod and/or application to an area of habitation of an arthropod) (see claim 5); wherein the substrate is selected from the group consisting of a wax emulsion, etc. (see claim 7); wherein the substrate is a wax emulsion comprised of a wax carrier selected from the group consisting of beeswax, etc. (see claim 8) (thus solid lipid material, thus claim 6 is met, thus claim 20 is met). The composition of claim 8, wherein the wax emulsion comprises: 30% by weight paraffin wax (thus solid lipid material, thus claim 3 is met, thus a non-vegetable wax, thus claim 6 is met); 4% by weight soy oil (thus soybean oil, thus claim 4 is met); 2% by weight sorbitan monostearate (thus a weighting agent or a viscosifier, thus claim 10 is met); 1% by weight vitamin E (thus oil miscible, thus claim 7 is met); and 58% by weight distilled water (see claim 9) (thus oil-in water emulsion).
Mafra-Neto et al teach the composition of claim 1 comprising: linalool 5%-25% by weight; phenylacetaldehyde 5%-45% by weight; β-myrcene 0%-50% by weight; citronella oil 5%-45% by weight; eucalyptol 5%-25% by weight; geraniol 10%-20% by weight (thus oil-soluble arthropod control agent, thus claims 2 and 4 are met); camphene 5%-30% by weight; ocimene 1%-45% by weight; anethole 5%-45% by weight; anisic acid methyl ester 0%-25% by weight; phenethyl alcohol 1%-35% by weight (thus water miscible, thus claim 8 is met); caryophyllene 2%-20% by weight; 4-methoxybenzyl alcohol 1%-15% by weight; methyl salicylate 0.1%-20% by weight; γ-terpinene 1%-45% by weight; α-terpinene 1%-45% by weight (thus oil miscible, thus claim 7 is met); limonene 5%-30% by weight; BHT 1%-25% by weight; dipentene 1%-15% by weight; sugars 5%-60% by weight; thickeners 0.5%-5% by weight (thus a viscosifier, thus claim 10 is met); preservatives 0%-2% by weight; antioxidants 0.1%-15% by weight; sunlight stabilizer 0.1%-10% by weight (thus the claimed stabilizer); wax 2%-40% by weight (thus overlaps with the claimed range in claim 15); emulsifier 0.5%-5% by weight; soybean oil 1%-40% by weight; and liquid carrier 1%-70% by weight (see claim 13). The method of claim 16, wherein the composition further comprises a pesticide (see claim 18). The method of claim 15, wherein the composition is administered in a form selected from the group consisting of a sprayable form etc. (see claim 21).
Mafra-Neto et al teach the composition of claim 7, wherein the substrate is a hot melt glue comprised of a polymer selected from the group consisting of ethylene-vinyl acetate, polyethylene, polypropylene, a polyamide (thus a stabilizer, which is a polymeric emulsifier, thus claim 1 is met), or a polyester (see claim 11).
Therefore, the reference is deemed to anticipate the instant claim above.
Applicant argues that “Mafrapneto is silent with respect to polymeric emulsifier” (page 7, 2nd paragraph).
This is not found persuasive. Mafra-Neto et al teach the composition of claim 7, wherein the substrate is a hot melt glue comprised of a polymer selected from the group consisting of a polyamide, etc. (see claim 11), thus a stabilizer, which is a polymeric emulsifier, thus claim 1 is met, no matter the cited reference recognized it or not.
Claims 1-5, 7-10, and 15-17 remain, and claim 20 is newly rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Gan et al (US 20160158143 A1).
This rejection is maintained for reasons of record set forth in the Office Action mailed out on 3/18/26, repeated below, slightly altered to take into consideration Applicant’s amendment filed on 6/12/26. Applicants’ arguments filed have been fully considered but they are not deemed to be persuasive.
Gan et al teach a topical skin care composition comprising: (a) an effective amount of Rhododendron ferrugineum (alpine rose) leaf extract for reducing (1) cyclo-oxygenase 1 activity, (2) cyclo-oxygenase 2 activity, and (3) lipoxygenase activity in skin; (b) an effective amount of Oenothera biennis (evening primrose) seed extract (thus the claimed oil-soluble arthropod control agent) for increasing type I collagen production in skin; (c) an effective amount of trifluoroacetyl tripeptide-2 for increasing type I collagen production in skin; and (d) a cosmetically acceptable vehicle (see claim 51). Gan et al teach the topical skin care composition of claim 51, comprising 0.01 to 2 wt. % of Rhododendron ferrugineum (alpine rose) leaf extract, 0.1 to 2 wt. (thus claim 2 is met) % of Oenothera biennis (evening primrose) seed extract, and 0.0001 to 2 wt. % of trifluoroacetyl tripeptide-2 (see claim 52). Gan et al teach the topical skin composition of claim 53, wherein the cosmetically acceptable vehicle comprises: 50 to 75 wt. % water; 1 to 15 wt. % glycerin (thus the claimed glycerol, thus claim 17 is met); 0.1 to 0.5 wt. % acrylates/C10-30 alkyl acrylate crosspolymer (thus a stabilizer, which is a polymeric emulsifier, thus claim 1 is met); 0.05 to 0.15 wt. % disodium ethylenediaminetetraacetic acid; 0.1 to 1.5 wt. % triethanolamine; 2 to 5 wt. % polydimethylsiloxane (thus a silicone oil, thus claims 7 and 16 are met); and 0.5 to 1 wt. % polymethyl methylacrylate (see claim 54). The topical skin composition of claim 59, wherein the composition comprises: 2 to 10 wt. % butyrospermum parkii (shea) butter (solid lipid material, thus claim 3 is met; thus claim 15 is met); 2 to 10 wt. % zea mays (corn) Germ oil (thus claim 4 is met; thus the claimed oil-soluble arthropod control agent); 1 to 7 wt. % pentylene glycol; 0.5 to 5 wt. % dimethicone (thus oil-miscible co-solvent, thus claim 7 is met); 0.5 to 5 wt. % glycerin (thus water-miscible co-solvent, thus claim 8 is met; thus a viscosifier, thus claim 10 is met, thus claim 17 is met); 0.1 to 3 wt. % triethanolamine (thus hydrophilic active, thus claim 5 is met); 0.1 to 3 wt. % polymethyl methacrylate; and 0.1 to 3 wt. % phenoxyethanol (see claim 60). Gan et al teach non-limiting examples of moisturizing agent that can be used with the composition include carnauba wax (thus amended claim 1 is met) [0061] and [0062]. Gan et al teach the composition comprising Hydroxypropyl Cyclodextrin, etc. (thus claim 9 is met) (Table 9). Gan et al teach other examples include beeswax, etc. [0062] (thus claim 20 is met)
The intended use of the composition was analyzed for patentable weight. It is deemed that the preamble ‘breathes life’ into the claims in that the prior art product must not be precluded for use as an arthropod control product by application directly on a target arthropod and/or application to an area of habitation of an arthropod. It is deemed that the composition disclosed by the cited reference is not precluded for carrying out the intended function of the claims.
Therefore, the reference is deemed to anticipate the instant claim above.
Applicant argues that “By contrast, instant claim 1 is directed to an oil-in-water emulsion comprising at least one oil-soluble arthropod control agent configured for use as an arthropod control product. Instant claim 1 expressly recites distinct use configurations, namely, application directly on a target arthropod and/or application to an area of habitation of an arthropod. Gan does not disclose either configuration. Gan does not teach direct application of its composition to an arthropod, does not teach application to an arthropod habitation area, and does not disclose that the ingredients of its skin-care composition are arthropod control agents. Accordingly, Gan does not disclose every limitation of claim 1, including at least the required oil- soluble arthropod control agent and the claimed arthropod-control configuration of use. Gan therefore does not anticipate claim 1 (page 7, last two paragraphs).
This is not found persuasive. What is being claimed is a composition, not a method of use. The intended use of the composition was analyzed for patentable weight. It is deemed that the preamble ‘breathes life’ into the claims in that the prior art product must not be precluded for use as an arthropod control product by application directly on a target arthropod and/or application to an area of habitation of an arthropod. It is deemed that the composition disclosed by the cited reference is not precluded for carrying out the intended function of the claims.
Applicant's arguments have been fully considered but they are not persuasive, and therefore the rejections in the record are maintained.
Conclusion
No claim is allowed.
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 QIUWEN MI whose telephone number is (571)272-5984. The examiner can normally be reached on Monday-Friday 8:30 am to 5:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anand Desai can be reached on 571-272-0947. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Qiuwen Mi/
Primary Examiner, Art Unit 1655
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