DETAILED ACTION
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
2. Claims 1-4 are currently pending.
Election/Restrictions
3. Applicant’s election without traverse of Group I, claim 2 with claim 1 as a linking claim in the reply filed on November 26, 2025 is acknowledged.
4. Claims 3 and 4 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
5. Claims 1 and 2 are examined on the merits.
Priority
6. Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 120 as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application No. 15/153,678, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application.
Appl. No. ‘678 does not provide support for a composition “consisting of” only alcohol and oil. The disclosure of Appl. No. ‘678 states that cetylpyridinium chloride (CPC) is a required ingredient in the composition in addition to oil and alcohols (see paragraphs [0002], [0003], [0020]). Thus, the prior disclosure is not considered to provide support for a composition which excludes this ingredient.
Applicant states that this application is a continuation or divisional application of the prior-filed application. A continuation or divisional application cannot include new matter. Applicant is required to delete the benefit claim or change the relationship (continuation or divisional application) to continuation-in-part because this application contains the following matter not disclosed in the prior-filed application:
Paragraphs [0009] and [0013]-[0026] introduce new subject matter. In addition, applicant has excluded any mention of cetylpyridinium chloride in the specification. This significantly changes the scope of the disclosure in relation to the prior disclosure. As discussed above, Appl. No. ‘678 states that this is a required ingredient. Thus, exclusion from this ingredient in a continuation application is improper.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
7. Claim 1 and 2 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
Undue experimentation would be required to practice the invention as claimed due to the quantity of experimentation necessary; limited amount of guidance and limited number of working examples in the specification; nature of the invention; state of the prior art; relative skill level of those in the art; predictability or unpredictability in the art; and breadth of the claims. In re Wands, 8 USPQ2d 1400, 1404 (Fed. Cir. 1988).
Applicant’s claims are drawn to a method for treating throat infections using a composition consisting of 20-30% alcohol, with ethanol recited in claim 2, and 70-80% oil where the composition is administered directly to the tonsils of the patient. However, the specification does not teach that a composition consisting of 20-30% of any alcohol without limitation and 70-80% any oil without limitation when administered to a patient is effective in treatment rather than toxic to the patient. Applicant’s specification states that the alcohol is diluted with water prior to mixture with the oil (see paragraph [0039]). Thus, it appears that water is a required ingredient that should be not excluded from the composition. Furthermore, applicant does not specifically test any composition with oral administration. Applicant’s specification states that a generic composition with oil and alcohol is able to kill various viruses and does not show skin irritation or dermal toxicity (see paragraphs [0039]-[0041]). However, it appears that the results against the viruses are in vitro results. In vitro results and lack of dermal irritation for an unspecified composition is not considered to provide enablement for the oral treatment of throat infection with a composition consisting of 20-30% alcohol and 70-80% oil. In addition, the state of the art indicates that the method as claimed would prove toxic to the subject rather than provide an effective treatment against throat infections. Applicant’s claim 1 recites the use of any alcohol without limitation. However, numerous alcohols such as methanol, ethylene glycol, and isopropanol are highly poisons and can require medical intervention with even the smallest amount of oral ingestion (see Chen, “Toxic Alcohols”, October 2020, https://www.acep.org/toxicology/newsroom/Oct2020/toxic-alcohols ). In addition, claim 1 recites the use of any oil without limitation. Again, numerous essential oils are toxic when ingested, particularly at the high concentrations claimed by applicant (see “Essential Oil Poisoning”( https://www.rch.org.au/clinicalguide/guideline_index/Essential_Oil_Poisoning/ July 2021) and Soloway (“Essential oils: Poisonous when misused”, https://www.poison.org/articles/essential-oils – accessed March 2026). Thus, an artisan of ordinary skill would most likely expect that the broadly claimed composition would induce illness in a patient rather than treat throat infection. Furthermore, in regards to claim 2, the art teaches that the antimicrobial activity of ethanol “falls off markedly below [a concentration] of 50%” (see Le Dare (J Pharm Pharm Sci (2019), vol. 22, pp. 525-535, page 528, first column)). Thus, an artisan would conclude that ethanol in the concentration claimed by applicant would not necessarily be useful unless combined with a specific oil composition – which would also have to contain nontoxic oils and be functional as an antimicrobial. Therefore, since applicant does not teach that the broadly claimed invention functions as claimed, and the art teaches that the composition as broadly claimed would likely cause illness, an artisan of ordinary skill would be forced to test every potential combination of oil and alcohol to determine if applicant’s invention functions as claimed. Since there are numerous types of alcohols and oils, this would clearly be a burden of undue experimentation.
8. Claims 1 and 2 are 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 1 is indefinite because it is unclear what is considered to be encompassed by a “narrow” jet stream.
9. No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Susan Hoffman whose telephone number is (571)272-0963. The examiner can normally be reached M-Th 8:30am - 5:00pm.
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/SUSAN HOFFMAN/Primary Examiner, Art Unit 1655