Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
DETAILED ACTION
Claims 1-10 are pending in the Claim Set filed 1/28/2026.
Claims 9 and 10 are newly added.
Claim 5 is withdrawn.
Herein, claims 1-4 and 6-10 are for examination.
Withdrawn Objections/Rejections
The objection to claim 4 is objected is withdrawn in view of the claim amendments.
The rejection of claims 1-4 and 6-8 under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Mordas et al (US20110123462, cited in IDS filed 2/20/2024) in view of Takata et al (USP 5703124, cited in IDS filed 2/20/2024 is withdrawn. Applicants’ arguments are moot in view thereof.
New Grounds of Rejection
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
The claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. The following rejection has been reformulated in view of amendments to claims.
Claims 1-4 and 6-10 are directed ‘A method of reducing bacterial activity in an environment, the method comprising applying an effective amount of a volatile antimicrobial composition in the environment, wherein the volatile antimicrobial composition comprises: (a) at least one aliphatic aldehyde component (b) allyl isothiocyanate; and (c) a non-aqueous solvent comprising fragrance oils; wherein the antimicrobial composition is formulated to evaporate.’
Claims 1-4 and 6-10 do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Claims 1-4 and 6-10 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter because the claimed invention is not directed to patent eligible subject matter. Based upon an analysis with respect to the claims as a whole, claim(s) 1-4 and 6-10 are determined to be directed to a law of nature/natural principle. The rationale for this determination is explained below [see MPEP§ 2106.01]:
Analysis of subject-matter eligibility under 35 U.S.C. § 101 requires consideration of three issues: (1) whether the claim is directed to one of the four categories recited in §101; (2) whether the claim recites or involves a judicial exception (i.e., a law of nature, natural phenomenon, or natural product); and (3) whether the claim as a whole recites something significantly different than the judicial exception. Is the claim to a process, machine, manufacture or composition of matter? In this situation, claims 1-4 and 6-10 are directed to a process (Method).
Process (Method) claims having a natural principle as a limiting element or step should be evaluated by determining whether the claim includes additional elements/steps or a combination of elements/steps that integrate the natural principle into the claimed invention such that the natural principle is practically applied, and are sufficient to ensure that the claim amounts to significantly more than the natural principle itself. If the claim as a whole satisfies this inquiry, the claim is directed to patent-eligible subject matter. If the claim as a whole does not satisfy this inquiry, it should be rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter.
Do the claims recite elements/steps in addition to the judicial exception that relate to the judicial exception in a significant way (i.e., the elements/steps are more than nominally, insignificantly, or tangentially related to the judicial exception). In addition to the method for reducing bacterial activity in an environment, the claims are directed to a generalized method comprising applying an effective amount of a volatile antimicrobial composition in the environment. As a result, the claims appear to embody the judicial exception because they are broad and encompass natural compositions, and thus this element does not weigh in favor of subject matter eligibility. Thus, these elements are not considered sufficient to transform the nature of the claims. The additional elements, when viewed as a whole, add nothing significant beyond the sum of their parts taken separately. The Court has made clear that to transform an unpatentable law of nature into a patent-eligible application of such a law, one must do more than simply state the law of nature while adding the words "apply it (or an equivalent)" [see MPEP§ 2106.01]. Essentially, appending conventional steps specified at a high level of generality, to laws of nature, natural phenomena, and abstract ideas cannot make those laws, phenomena, and ideas patent eligible. The present claims inform a relevant audience about certain laws of nature and the additional steps are considered to consist of well understood, routine, conventional activity already engaged in by the scientific community; and those steps, when viewed as a whole, are considered to add nothing significant beyond the sum of their parts taken separately. For these reasons it is considered that the claims as a whole do not provide additional elements so that the claimed invention amounts to more than application of the natural principle are not patent eligible as being directed to non-statutory subject matter. Claim(s) 1-4 and 6-10 are directed to a natural phenomenon, namely the existence in nature of trans-2-hexenal, allyl isothiocyanate, 1-hexanol (non-aqueous solvent: fragrance), 1-penten-3-ol (fragrance: fruity odor) and cis-2-penten-1-ol (fragrance: fruity aroma), of which are volatile components found in the essential oil of Upwald Wasabi as taught by Kumagai et al (Essential Oil, Biosci. Biotech. Biochem. 1994, 58, p.2131, Table II and III (trans-2-hexenal (Peak No. 4), allyl isothiocyanate (Peak No. 9), 1-hexanol (Peak No. 8), 1-penten-3-ol (Peak No. 1), cis-2-penten-1-ol (Peal No. 6); See entire document), and also, (E)-2-nonenal, allyl isothiocyanate and 1-hexanol found in Potherb Mustard as taught by Zhao et al (LWT, Analysis of volatile components, 2007, 40, p.439, Table 1 ((E)-2-nonenal (No. 21), allyl isothiocyanate (No. 72), 1-hexanol (No. 42); See entire document, of record). Instant Specification (for example) at paragraph 5 states that in one embodiment, the aliphatic aldehyde component is a C6-C13 aldehyde can be unsaturated. Therefore, trans-2-hexenal (i.e., C6 unsaturated aldehyde) and (E)-2-nonenal (C9 unsaturated aldehyde) (trans-2-hexenal and (E)-2-nonenal (i.e., trans-2-nonenal) are encompassed by the instant claims. Particularly, trans-2-hexenal is recited in claim 10. Further, 1-hexanol and is a fragrance as taught by Roreger et al (US20060016905, paragraphs {0019-0020]); Roreger further teaches citronella (fragrance) and list others [0020]: also, citronella is recited in Specification (p.19). Moreover, it would have been obvious to include more than one fragrance in view of Roreger, and Metcalfe et al (USP 3024283, col.3, lines 31-43) teaches that 1-hexanol and butanol are organic solvents (i.e., non-aqueous solvent) and also Nakamura et al (US20100190104, paragraph [0059]) teaches that 1-hexanol is a non-aqueous solvent. The Specification provides no evidence that mixing trans-2-hexenal and/or (E)-2-nonenal with a non-aqueous solvent comprising a fragrance changes the properties of either/or results in a composition having properties not possessed by the compounds alone. Further, as taught by the prior art of Kumagai and Zhao, allyl isothiocyanate is found in nature with trans-2-hexenal and/or (E)-2-nonenal and 1-hexanol. The specification provides no evidence that mixing trans-2-hexenal and (E)-2-nonenal with allyl isothiocyanate and 1-hexanol (non-aqueous solvent) changes the properties of either/or that results in a composition having properties not possessed by the compounds alone since Instant Claims do not specify what their inhibition must be against. Furthermore, Instant claims do not require any additional components beyond trans-2-hexenal and/or (E)-2-nonenal with allyl isothiocyanate and a non-aqueous solvent (e.g., 1-hexanol) comprising fragrance oils (e.g., 1-penten-3-ol (fruity odor) and cis-2-penten-1-ol (fruity aroma); (i.e., volatile compounds). The markedly different characteristics analysis compares the nature-based product limitation to its naturally occurring counterpart in its natural state. When there is no naturally occurring counterpart to the nature-based product, the comparison should be made to the closest naturally occurring counterpart. In the case of a nature-based combination, the closest counterpart may be the individual nature-based components that form the combination, i.e., the characteristics of the claimed nature-based combination are compared to the characteristics of the components in their natural state.
In this case, a claimed compound(s) of at least one aliphatic aldehyde component, e.g., trans-2-hexenal and/or (E)-2-nonenal, with allyl isothiocyanate and 1-hexanol (non-aqueous solvent comprising a fragrance) are naturally occurring compounds, wherein these compounds are volatile compounds that when formulated together in a method of reducing bacterial activity in an environment, would necessarily be formulated to evaporate, comprising applying an effective amount of a volatile antimicrobial composition in the environment, absence evidence to the contrary.
An analogous rationale applies to the limitation regarding weight percentages of the aliphatic aldehyde component, i.e., concentration or isolation would not be expected to alter the properties of a compound. While it may be the case that the composition having a particular weight percentage would be more useful than others in a given application (in the same that an isolated gene is useful in particular applications where an intact genome would not), the Instant Claims are directed to compositions per se where the structure and identity of the compounds is the same as found in nature regardless of concentration.
Does the claim recite additional elements that amount to significantly more than the judicial exception? To be patent-eligible, a claim that is directed to a judicial exception must include additional features to ensure that the claim describes a process or product that applies the exception in a meaningful way, such that it is more than a drafting effort designed to monopolize the exception. The Supreme Court has identified a number of considerations for determining whether a claim with additional elements amounts to significantly more than the judicial exception itself. The following are examples of these considerations, which are not intended to be exclusive or limiting. Limitations that may be enough to qualify as ‘‘significantly more’’ when recited in a claim with a judicial exception include: Adding a specific limitation other than what is well-understood, routine and conventional in the field, or adding unconventional steps that confine the claim to a particular useful application [see MPEP§ 2106.01].
In this situation, Instant Claims are directed to at least one aliphatic aldehyde compounds, for example, trans-2-hexenal and/or (E)-2-nonenal, allyl isothiocyanate and a non-aqueous solvent comprising a fragrance, a method comprising applying an effective amount thereof to reduce bacterial activity in the environment, is formulated to evaporate, and therefore are not deemed to be significantly more than the judicial exception.
For these reasons, claims 1-4 and 6-10 are not deemed to represent ‘substantially more’ than the judicial exception.
New Grounds of Rejection
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) 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 of this title, 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 under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 1-4 and 6-10 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Schur (USP 7638114) as evidenced by Nakamura et al (US20100190104) in view of Sekiyama (USP 5,334,373) and Takata et al (USP 5703124, cited in IDS filed 2/20/2024).
Regarding Instant Claims
The transitional term comprising, which is synonymous with ‘‘containing’ or ‘characterized by’ is open-ended and does not exclude additional, unrecited elements or method steps. See, e.g. Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004) (‘like the term ‘comprising,’ the term ‘containing’ is open-ended.).
Regarding claims 1-4, 6 and 9-10,
Schur teaches a method for disinfecting the air, comprising the distribution or atomization of a special antimicrobial composition. The invention also relates to antimicrobial compositions and the use thereof in order to disinfect the air (Title; Abstract). Schur teaches that the antimicrobial composition comprises 2-hexenal (β-propylacrolein) (g) (col.5, lns.11-21), (i.e., C6 aliphatic aldehyde: reads on claims 9, 10); essential oil, e.g., extracts of mustard (h5) (col.5, lns.22-40); hexyl alcohol (a1) (hexanol, i.e., non-aqueous solvent) (col.3, lns.1-19): As evidenced by Nakamura et al (US20100190104, paragraph [0059]); Nakamura teaches 1-hexanol is a non-aqueous solvent; Volatile Oil Fragrances: cironellal (g) (col.5, lns.11-21); eugenol and anethole: component (c) (col.4, lns.50-57).
Schur teaches a method for introducing the air treatment agent into the air, the air treatment agent is first supplied from a storage chamber to a vortexing chamber through which air is flowing, wherein the evaporation of the air treatment agent occurs without the supply of heat (col.6, lns.58-67 to col.7, lns.1-13). Schur teaches in the mixture of air and vaporized air treatment agent flowing into the space to be treated, a precipitate cannot be detected with conventional methods (col.7, lns.34-37). Therefore, Schur teaches an antimicrobial composition formulated to evaporate, as claimed. Moreover, Schur teaches that the present method is suitable for the disinfection of the air in private households, offices and public buildings as well as in food-processing plants, transport devices, cooling, air-conditioning and other aeration fields (col. lns.40-47). Further, Schur teaches the air disinfectant is introduced into packages rolls and the like, wherein the air disinfectant causes death of the mold germs that is present on the rolls, wherein the use of air disinfectants in packages significantly reduces the risk of molding of the food contained (col.10, lns.13-28). Thus, the teachings of Schur make prima facie obvious a method of reducing bacterial activity in an environment.
Schur teaches antimicrobial composition comprising 2-hexenal (β-propylacrolein) (g) (col.5, lns.11-21) and essential oil, e.g., extract of mustard (h5) (col.5, lns.22-40) contains these particular ingredients in the amount of 0.001 to 9% wt (col.5, lns.43-47). Therefore, the wt% amounts of 2-hexenal (β-propylacrolein) as taught by Schur overlaps with the claimed amounts. In the case where the claimed ranges "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); MPEP 2144.05.
Schur does not teach the at least one aliphatic aldehyde component has a minimum inhibition concentration of at least about 0.9 mg/L against bacterial growth. Nonetheless, Schur explicitly teaches trans-2-hexenal (trans-2-hexenal is claimed in claim 10). So that it would necessarily follow that the aliphatic aldehyde, e.g., trans-2-hexenal, as taught by Schur would possess a minimum inhibition concentration of at least about 0.9 mg/L against bacterial growth. If the prior art teaches the identical chemical structure or composition as that which is claimed, the properties applicant discloses and/or claims are necessarily present. See In re Spada, 911 F.2d 705,709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). MPEP 2112.01.
Schur differs from the claims in that the document does not teach that the extract from mustard oil is ally isothiocyanate and what is the concentration of ally isothiocyanate in mustard extract. Schur does not teach gram-negative bacteria are reduced.
However, Sekiyama and Takata, as a whole, cure the deficiencies.
Sekiyama teaches allyl isothiocyanate (allyl mustard oil) is obtained from the extraction from raw material of mustard, wherein allyl isothiocyanate (allyl mustard oil) has the properties and use thereof for bacteriostatic or germicidal treatment (col.1; lns.1-20). Particularly, Sekiyama extract of mustard contains above 90% allyl isothiocyanate (col. 3, lns.1-8). Thus, one skilled in the art would have been motivated to look to the teachings of Sekiyama, thus, recognizing that extract of mustard contains at least 90 wt of allyl isothiocyanate.
As described above, Schur teaches antimicrobial composition comprising 2-hexenal (β-propylacrolein) (g) (col.5, lns.11-21) and essential oil, e.g., extract of mustard (h5) (col.5, lns.22-40) contains these particular ingredients in the amount of 0.001 to 9% wt (col.5, lns.43-47). Since Sekiyama teaches that extract of mustard contains above 90% allyl isothiocyanate (col. 3, lns.1-8); accordingly, 90% of 0.001 to 9% wt yields 0.0009-8.1 %wt. of allyl isothiocyanate in mustard extract; of which overlaps with the claimed amount. A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art." In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003).
Overall, the wt% amounts of 2-hexenal (β-propylacrolein) and allyl isothiocyanate as taught by Schur in view of Sekiyama overlaps with the claimed wt% amounts. In the case where the claimed ranges "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); MPEP 2144.05.
Takata teaches a method of treating microorganisms comprising using allyl isothiocyanate which has antimicrobial actions such as bactericidal action, antibacterial action and fungicidal action. Takata teaches an essential oil containing allyl isothiocyanate, such as an extract from wasabi or mustard (col 2, lns.60-67; See entire document). Moreover, Takata teaches that ally isothiocyanate is a highly volatile oily liquid (col.1, lns.32-40). Takata teaches that the antimicrobial composition comprising allyl isothiocyanate is used for treating microorganisms or keeping freshness of perishables, which comprises treating target substances such as foods, perishables such as fruit and vegetables, and the like with the composition (col.1, lns.1 -10). Takata teaches ally isothiocyanate composition can be formulated into liquids (col.3, lns.35-40). Particularly, Takata teaches an antimicrobial composition comprising allyl isothiocyanate that is highly volatile and useful as an antimicrobial agent for varied purposes to provide a method of reducing bacterial activity in an environment, e.g., Escherichia coli (i.e., gram negative bacteria), comprising applying an effective amount of allyl isothiocyanate in a solution for spraying an antimicrobial composition thereof. Therefore, one skilled in the art would have been motivated to use allyl isothiocyanate obtained from mustard extract because it was known to reduce bacterial activity in an environment, in particular, effective against Escherichia coli (i.e., gram negative bacteria) as taught by Takata.
Further, Schur differs from the claims in that the document does not teach the at least one aliphatic aldehyde component has a minimum inhibition concentration of at least about 0.9 mg/L against bacterial growth. Nonetheless, Schur explicitly teaches trans-2-hexenal (trans-2-hexenal is claimed in claim 10). So that it would necessarily follow that the aliphatic aldehyde, e.g., trans-2-hexenal, as taught by Schur would possess a minimum inhibition concentration of at least about 0.9 mg/L against bacterial growth. If the prior art teaches the identical chemical structure or composition as that which is claimed, the properties applicant discloses and/or claims are necessarily present. See In re Spada, 911 F.2d 705,709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). MPEP 2112.01.
Accordingly, the antimicrobial composition as taught by Schur, Sekiyama and Takata, as a whole, is structurally and chemically indistinguishable from the claimed antimicrobial composition, where there is no unobvious distinction between the structural and functional characteristics of the claimed composition and the composition of the prior art, it would necessarily follow that so that the antimicrobial composition comprising trans-2-hexenal and allyl isothiocyanate would provide a fractional inhibition concentration of equal to or less than 0.5. This property would be the natural result of the combination of the prior art elements, when the limitation at issue is the 'natural result' of the combination of prior art elements." PAR Pharm., Inc. v. TWI Pharms., Inc., 773 F.3d 1186, 1195 (Fed. Cir. 2014) (quoting In re Oelrich, 666 F.2d 578,581 (CCPA 1981)).
All the claimed elements herein are known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to provide a method of reducing bacterial activity in an environment and one of ordinary skill would have had a reasonable expectation of success in producing the claimed invention. Therefore, in the absence of evidence to the contrary, the claimed invention as a whole would have been obvious to one of ordinary skill as evidenced by Schur, Sekiyama and Takata, as a whole.
Claims 7 and 8 are rejected under AIA 35 U.S.C. 103 as being unpatentable over Schur (USP 7638114) as evidenced by Nakamura et al (US20100190104) in view of Sekiyama (USP 5,334,373) and Takata et al (USP 5703124, cited in IDS filed 2/20/2024) as applied to claims 1-4 and 6-10 above and further in view of Meine et al (US 2008/0207481).
The teachings of Schur, Sekiyama and Takata, as a whole, are described above.
Schur, Sekiyama and Takata do teach that the volatile antimicrobial composition reduces malodor or that the composition is incorporated in an air sanitizer.
However, Meine cures the deficiencies.
Meine teaches the use of fragrances in typical consumer products serves two different purposes. Firstly, the products as such are to be fragranced, secondly the objects on which the products act are to be fragranced [0003]. Meine teaches fragrances such as eugenol (i.e., volatile oil fragrance), and anethole (volatile oil fragrance) ([0029]; [0033]). Also, eugenol and anethole (i.e., fragrances) are similarly taught by Schur (See above). Meine teaches a perfume oil according to the invention can even consist of just a single fragrance, whereas, in the usual case, a perfume oil (thus a fragrance composition) consists of at least 2, preferably at least 3, different fragrances which together develop a preferably nice-smelling odor pattern [0028]. Furthermore, Meine teaches that the composition comprising these particular fragrances are for the purpose of being provided in an air freshener [0124]. Thus, one skilled in the art would recognized the advantages of incorporating the volatile antimicrobial composition as taught by Schur, Sekiyama and Takata, as a whole, in an air freshener that comprises fragrance oils and one skilled in the art would have been motivated to do so in order to reduce malodor in an environment, wherein one of ordinary skill in the art would have had a reasonable expectation that by incorporating the fragrances in an air freshener would provide the ability to control the amount of fragrance delivered to the environment.
Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to provide a method of reducing bacterial activity in an environment and one of ordinary skill would have had a reasonable expectation of success in producing the claimed invention. Therefore, in the absence of evidence to the contrary, the claimed invention as a whole would have been obvious to one of ordinary skill as evidenced by Schur, Sekiyama, Takata and Meine, as a whole.
Response to Arguments
The prior art rejections of Mordas et al (US20110123462) are withdrawn. Therefore, Applicants’ arguments directed Mordas are moot in view thereof.
Applicants argue that Takata teaches dissolving the AIT and the polyhydric alcohol gradually in water to form the composition. See Takata at 3:47-51. The compositions are then used with food, where the food is washed with a water containing the composition, sprayed with an aqueous solution with the composition, or mixed with product (e.g., added to the seasoning liquid of pickled vegetables). Thus, Takata only teaches aqueous solutions. In fact, a skilled artisan would understand that the antimicrobial properties of Takata would be lost if the AIT and polyhydric alcohol were added to a non-aqueous solvent. As such, the combination of Mordas and Takata does not teach the method of instant claim 1.
Applicant’s arguments have been fully considered but they are not persuasive, because, firstly, the prior art rejections of Mordas (US20110123462) and Takata et al (USP 5703124), as a whole, are withdrawn. Herein, the teachings of Takata are provided to modify the teachings of Schur. As described above, the teachings of Takata are disclosed to demonstrate that allyl isothiocyanate is highly volatile and useful as an antimicrobial agent for varied purposes to provide a method of reducing bacterial activity in an environment, e.g., Escherichia coli (i.e., gram negative bacteria), comprising applying an effective amount of allyl isothiocyanate in a solution for spraying an antimicrobial composition thereof. Further, Takata also teaches that the composition comprises a polyhydric alcohol (i.e., non-aqueous solvent) (col.2, lns.40-45; col.3, lns.47-52), and further mentions stability issues that may arise with allyl isothiocyanate in an aqueous solution (col.2, lns.1-10). Furthermore, Takata teaches that allyl isothiocyanate has limited solubility in water (See 2. Results col.10, lns.40-42). Thus, one skilled in the art would have had not have been motivated to modify Schur to further include significant amounts of water, since Schur teaches using hexanol (non-aqueous solvent, e.g., alcohol) as the solvent. Furthermore, Schur teaches that if water (i8) is present, the water may be preferably employed at a lowest amount of about 0.1% wt, (col.5, lns.60-67). Thus, one skilled in the art would have recognized that water is not considered a necessary ingredient in the antimicrobial composition as taught by Schur. Nonetheless, instant claims are open-ended and do not exclude additional, unrecited elements or method steps.
The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Absence evidence to the contrary, the combined teachings of the cited references, as described above, provide one skilled in the art sufficient to motivation to combine trans-2-hexenal, allyl isothiocyanate and fragrance oils to provide a volatile antimicrobial composition while having a reasonable expectation of success that the volatile antimicrobial composition would be capable of providing a method of reducing bacterial activity in an environment.
Conclusions
No claim is allowed.
Contact Information
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/T.W./ Examiner, Art Unit 1619
/SARAH ALAWADI/ Primary Examiner, Art Unit 1619
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