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 .
Election/Restrictions
Applicant’s election without traverse of Group I (claims 16-20) in the reply filed on 04/13/2026 is acknowledged.
Claims 16-20 are pending, claims 1-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention.
Claims 16-20 are under current examination.
Priority
It is acknowledged that present application is a continuation of 18/665,259.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 03/18/2024 and 11/05/2025 are acknowledged. All references have been considered unless marked with a strikethrough. The information disclosure statement filed 03/18/2024 fails to comply with 37 CFR 1.98(a)(3)(i) because it does not include a concise explanation of the relevance, as it is presently understood by the individual designated in 37 CFR 1.56(c) most knowledgeable about the content of the information, of each reference listed that is not in the English language. It has been placed in the application file, but the information referred to therein has not been considered.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because it states, "the present disclosure provides...". 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 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.
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.
Claim(s) 16 and 18-20 are rejected under 35 U.S.C. as being unpatentable over Majher (US 20210169061 A1) in view of Harada (US 20210315209 A1), as evidenced by Koppmann et. al. (Volatile Organic Compounds in the Atmosphere, 2007, Chapter 2 pg. 50) hereinafter Koppmann.
Regarding claim 16, Majher teaches an aerosol dispenser assembly that contains a pest control composition. The device has an overcap (para. [0015]), an actuator body (para. [0014]), and nozzle insert that connects to an exit orifice (para. [0014]). Majher discloses that the exit orifice is within the range of 0.38 mm to 0.69 mm (see table 1). The present invention teaches an orifice diameter of about 0.75 mm to 2 mm, and as stated in instant specification, the term “about” can mean a range of up to 20% (para. [0036]). As such, the claimed range overlaps with that that disclosed in Majher, and as such is obvious. MPEP § 2144.05(I). Majher further teaches that the dispensing system can contain citric acid esters (para. [0038]), active ingredients such as cypermethrin (para. [0035]), and a propellant (para. [0060]). Majher discloses the presence of volatile organic compounds in the composition, specifically propane and isobutane (para. [0024]). Both propane and isobutane are known in the art as volatile organic compounds, as taught in Koppmann (see Table 2.2).
While Majher teaches many elements of claim 1, it fails to disclose the concentration of volatile organic compounds (VOCs) in the composition. Harada teaches an aerosol composition for pest control that has a volatile organic compound content of less than 15% (para. [0046]), for the benefit of not violating any VOC regulations (para. [0010]). This fully encompasses the range disclosed in instant claim 16. The composition taught in Harada contains water and a propellent (see claim 1). Harada further describes that the composition contains glycol ether as a solvent (para. [0025]), and has active agents such as cypermethrin (para. [0024]).
Majher and Harada are considered to be analogous to the claimed invention because they are in the same field of aerosol compositions for pest control. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to substitute the composition taught with the dispensing device in Majher for the composition taught in Harada. Both compositions in Majher and Harada are described as pesticidal compositions, and both can be used in aerosol dispensing systems. Simple substitution of one composition for another is within the purview of the skilled artisan, and would yield predictable results. MPEP § 2143(III)(b). Further, the person of ordinary skill in the art would have had a reasonable expectation of success in selecting a VOC content of less than 15%, as taught in Harada, for the composition taught in instant invention. One of ordinary skill in the art would have been motivated to select this concentration of VOC because Harada teaches that this concentration range does not violate VOC regulations (para. [0010]), and is effective in a pesticidal composition. MPEP § 2143(I)(g).
Regarding claim 18 and 19, Majher teaches that the pesticidal composition has a Dv(50) particle size of about 100 µm to 200 µm, and a flow rate of 1.80 g/s to about 3.00 g/s (see claim 17). Both the range of particle size and flow rate overlap with those of instant claims 18 and 19 and as such, a prima facie case of obviousness exists. MPEP § 2144.05(I).
Regarding claim 20, Harada further teaches that the aerosol agent can be sprayed at a distance of 50 cm, or about 20 inches (para. [0049]). This distance touches the instant claimed range and as such it is obvious. (“A prior art reference that discloses a range encompassing a somewhat narrower claimed range is sufficient to establish a prima facie case of obviousness”) MPEP § 2144.05(I).
Claim(s) 17 is rejected under 35 U.S.C. as being unpatentable over Majher (US 20210169061 A1) in view of Harada (US 20210315209 A1), and in further view of Fujii (WO 2005013685 A1).
With respect to claim 17, Majher and Harada teach the claimed invention as shown above, but do not disclose an aerosol dispensing system where the exit orifice has a diameter from the range of 1.0 mm to 1.3 mm.
Regarding claim 17, Fujii teaches an aerosol for controlling insect pests, where the container has an actuator and a nozzle attached to an exit orifice (see abstract). The exit orifice taught in Fujii has a diameter of 0.4 to 2 mm (see claim 2). Fujii further narrows this range to 0.8 to 1.5 mm, for higher pest control effect (para. [0025]). The range taught in instant claim 17 is fully encompassed by the range taught in Fujii, and thus it is obvious. MPEP § 2144.05(I).
Majher, Harada, and Fujii are considered to be analogous to the claimed invention because they are in the same field of aerosol containers that contain pesticidal formulations. The diameter of the exit orifice of an aerosol container is an optimizable parameter, inviting one skilled in the art to experiment. As such, a person of ordinary skill in the art would have found it obvious to optimize within the range taught by Majher and Fujii for the benefit of higher pest control effect.
Conclusion
Claim(s) 1-15 are withdrawn from consideration.
Claim(s) 16-20 are rejected.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Makenna Miller whose telephone number is (571)272-9852. The examiner can normally be reached Mon-Fri 7:30-5:00 EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany Barham can be reached at (571) 272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
/M.R.M./Examiner, Art Unit 1611
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