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
Previous Rejections
Applicants' arguments, filed 02/12/26 have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Rejections - 35 USC § 103
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.
Claims 1, 6, 9 and 13-17 are rejected under 35 U.S.C. 103 as being unpatentable over Hoffman et al. (US 2003/0198659A1) in view of Gregg et al. (US PG Pub. 2005/0042316A1) and further in view of Coelho et al. (US 2019/0343122A1).
Hoffman et al. discloses fibrous pest control, see title. Hoffman teaches use and application of oleoresin, see [0039] and [0138], pesticides such as methomyl, see [0134], [0210] and [0273]. Hoffman teaches use of sugars that helps in bird repelling effect, see [0054]. The insect can be lepidoptera (pink Bollworm, pectinophora gossypiella), see [0060], [0084] and [0135]. Complex sugars are also used and they act as repellents for birds, see [0054]. Several pesticides are taught to be used, see [0134].
Hoffman does not teach the amount of methomyl.
Gregg et al. disclose attractants for moths (a noctuid), see title. Gregg et al. teaches use of 1% methomyl in [0083] and [0213] and this amount overlaps with the claimed amount and thus provides obviousness because in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists. MPEP 2144.05 A.
Coelho teaches insect control strategies using pheromones, see title. Coelho teaches exemplary insecticides including spinetoram and emamectin, see Table 1.
It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to have utilized1% methomyl, spinetoram and emamectin as pesticide for controlling pests (noctuid) motivated by the teachings of Gregg et al. and Coehlo et al. teaching use of methomyl and spinetoram and emamectin as pesticides/insecticides. One of ordinary skill would have been motivated to do so because all the three references are drawn to pesticidal/insecticidal compositions. Generally, it is prima facie obvious to combine two compositions, each of which is taught by the prior art to be useful for same purpose, in order to form a third composition to be used for the very same purpose. The idea for combining them flows logically from their having been individually taught in the prior art. See MPEP 2144.06. Moreover, where it would have been obvious to have combined individually known ingredients, evidence must be provided establishing that appellant’s combination of agents is in some way more effective or in some way different than any single member of that combination in order to rebut that prima facie case. See In re Dial, 140 USPQ 244 (C.C.P.A. 1964).The efficacy claimed would be implicit to the method taught by the art for controlling wasps with attractant such as semiochemical, oleoresin. "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990), see MPEP 2112.02(II).The pattern and amount of application is an optimizable parameter which can be manipulated by doing experimental manipulations for optimum pesticidal effect.
Applicant argues that as amended the composition is both long lasting and allows for the application at much lower levels than that known in the prior art.
These arguments are not persuasive. The use of oleoresin, the claimed pesticides and sugar for pest control and moths has been taught by the prior art as discussed above. The generic amount of the pesticide is given by Gregg et al. Therefore, it would have been obvious to one of ordinary skill to have manipulated the amounts of the pesticide in order to control the pests (noctuid, moth) in an optimum manner. Since the references discussed above teach the pesticidal oleoresin and pesticides in an overlapping amount and sugar used in a composition, the composition will necessarily possess the rain fastness and the retained efficacy as claimed because property cannot be separated from the chemistry of the composition. "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990), see MPEP 2112.02(II).
Action is final
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 nonprovisional extension fee (37 CFR 1.17(a)) 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 SNIGDHA MAEWALL whose telephone number is (571)272-6197. The examiner can normally be reached Monday thru Friday; 8:30 AM to 5PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana S. Kaup can be reached at 571-272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SNIGDHA MAEWALL/Primary Examiner, Art Unit 1612
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