DETAILED ACTION
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 .
Priority
The instant application was received 25 August 2023; it is a continuation of a national stage application PCT/CN2021/131064, filed 17 November 2021, and claims priority to CN202110826245, filed 21 July 2021. Acknowledgment is made of applicant’s claim for foreign priority and a certified copy of the priority document has been received.
Status of the Claims
The listing of claims filed 25 August 2023 has been examined. Claims 1-10 are pending.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 25 August 2023 is acknowledged and has been considered.
Claim Objections
Claim 3 and 7-10 are objected to because of the following informalities:
In claim 3, the comma in “3,” should be replaced with a period (“3.”).
In claim 3, “0.6-10 millimeter” should read “0.6-10 millimeters”.
Claims 7-10 recite "mixture”. Because “mixture” is not preceded by definite article “the” or indefinite article “a”, it is unclear whether “mixture” is referring to the same mixture in claim 6 or to a different mixture. For examination purposes, the mixture described in claims 7-10 will be interpreted as the same mixture described in claim 6.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 7-10 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 6 states, “…wherein a sprinkling area corresponding to the mixture of 1 liter of beta-ocimene and 5-20 kilograms of vermiculite or perlite is 1-10 mu…” However, claim 7 states, “…1-5 kilograms of mixture is evenly sprinkled on plants on one mu of land.” Thus, claim 7 improperly expands the range recited by claim 6 to 1-5 kilograms as opposed to 5-20 kilograms and does not contain all the limitations of claim 6.
Similarly, claim 8, which depends from claim 6, recites, “...1-5 sprinkling points are selected on per mu of land, each of the sprinkling points has an area of 5-30 square meters, and 0.12-2.1 kilograms of mixture is sprinkled in each of the sprinkling points.” If only one sprinkling point were selected and only 0.12 kilograms were applied, then the kilogram range recited by claim 6 is not further limited by dependent claim 8. Since claim 6 indicates 1-10 mu corresponds to at least 5 kilograms, claim 8 does not further limit claim 6. Rather, claim 8 contains subject matter that was not within the scope of claim 6, from which claim 8 depends. Claims 9-10 depend from claim 8 and therefore inherit the improper claim dependency issue of claim 8 without curing the improper limitation. See MPEP 608.01(n)(III).
Applicant may cancel the claims 7-10, amend the claims to place them in proper dependent form, rewrite the claims in independent form, or present a sufficient showing that the dependent claims comply with the statutory requirements.
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 1-2 are rejected under 35 U.S.C. 103 as being unpatentable over Tuzun (WO 0021364; IDS dated 08/25/2023, Cite No. 2).
Tuzun teaches plant-derived essential oils can be utilized as natural pesticides (p. 1, lines 5-6 and p.7, lines 1-19). Tuzun suggests cis-beta-ocimene as well as trans-beta-ocimene (p.13, line 3), among other essential oil extracts, as possible components within a composition intended to repel insects. Tuzun explains essential oils may be used in combination with a porous carrier substance, such as perlite or vermiculite, and sprinkled on plant foliage or the soil into which plants can be immediately planted (p.15, line 21 – p. 16, line 11 and p. 23, line 20 – p. 24, line 12). Tuzun indicates a composition comprising an essential oil and a carrier substance can be used in open spaces including greenhouses and fields (p. 17, lines 10-15).
Regarding claims 1-2, Tuzun teaches a mixture including beta-ocimene and a porous carrier, like vermiculite or perlite, which can be scattered in an open space such as a field or greenhouse to repel pests.
Tuzun does not teach an exemplary composition containing beta-ocimene.
However, Tuzun’s suggestion to prepare a composition intended to repel pests using a porous carrier substance and a plant-derived essential oil such as cis- or trans-beta-ocimene would have motivated a person having of ordinary skill in the art (PHOSITA) to try making this composition (MPEP 2141(III)). Thus, it would have been prima facie obvious to a PHOSITA before the effective filing date of the claimed invention to have tried making the beta-ocimene and perlite or vermiculite composition described by Tuzun and to have applied the resultant composition as a pest-repellent.
Claims 3-7 are rejected under 35 U.S.C. 103 as being unpatentable over Tuzun (WO 0021364; IDS dated 08/25/2023, Cite No. 2) in view of Glienke (DE3824940; IDS dated 08/25/2023, Cite No. 14).
Regarding claims 3-4, Tuzun teaches all of the elements of the current invention as stated above except a particle size between 0.6-10 millimeters for the vermiculite or perlite carrier.
Glienke teaches the cavities within perlite can be loaded with essences to be released (Paragraph [0007]). Furthermore, Glienke describes perlite having a particle size between 0.1-15 millimeters (Paragraph [0009]) and the particle size of perlite can be utilized to control the release of the substances stored within its cavities (Paragraph [0010]).
Glienke does not teach applying beta-ocimene as a natural pesticide.
It would have been prima facie obvious to a PHOSITA before the effective filing date of the claimed invention and following the teachings of Tuzun to incorporate the teaching of Glienke to alter the particle size of a porous carrier, like perlite, so beta-ocimene’s release from its pores could be controlled. This control could provide the mixture comprising beta-ocimene and a carrier with advantageous properties (Glienke, Paragraph [0009], lines 3-4).
Regarding claims 5-7, Tuzun and Glienke teach all of the elements of the current invention as stated above except evenly mixing 1 liter of beta-ocimene with 5-20 kilograms of a carrier and applying the resultant mixture to an area 1-10 mu in size.
Tuzun teaches mixing at least about 0.5 g of essential oil and about 10-50 grams of the carrier substance to cover an area one square meter in size (p. 24, lines 1-4).
It would have been prima facie obvious to a PHOSITA before the effective filing date of the claimed invention to have optimized the conditions taught by Tuzun through routine experimentation (MPEP 2144.05(II)). As stated in the instant specification, one mu is equal to about 666.67 square meters (Paragraph [0013], line 3). Thus, a PHOSITA would have been motivated to adjust the preparation described by Tuzun by scaling it up to make enough mixture to provide the desired pest-repellant benefit. For example, the ratios described by Tuzun could have been multiplied by 67 to prepare enough pesticide to cover a field 670 square meters in size, which is over one mu. Furthermore, more mixture would be required to provide a higher pest-repellant benefit.
Claims 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over Tuzun (WO 0021364; IDS dated 08/25/2023, Cite No. 2) in view of Glienke (DE3824940; IDS dated 08/25/2023, Cite No. 14) and Messina (WO 2011/142918A1).
Tuzun and Glienke teach all of the elements of the current invention as stated above except:
A point-distributed sprinkling mode wherein 1-5 sprinkling points are chosen on one mu of land, each sprinkling point having an area between 5-30 square meters, and 0.12-2.1 kilograms of the mixture comprising beta-ocimene and vermiculite or perlite is applied at each sprinkling point as described by claim 8.
A sprinkling mode wherein one sprinkling point having an area between 25-30 square meters is located at the center of one mu of land and 0.6-2.1 kilograms of the mixture comprising beta-ocimene and vermiculite or perlite is applied at the sprinkling point as described by claim 9.
A sprinkling mode wherein 5 sprinkling points are located at the center and 4 corners of a rectangular mu of land, each sprinkling point having an area between 5-20 square meters, and 0.12-0.42 kilograms of the mixture comprising beta-ocimene and vermiculite or perlite is applied at each sprinkling point as described by claim 10.
Messina discloses the use of geraniol, a monoterpenoid, in insect repellant compositions (Paragraph [0007], lines 1-2) in combination with a carrier, such as vermiculite (Paragraph [0082], lines 11-12) as well as application methods like sprinkling (Paragraph 0124], line 8). Further, Messina discloses application methods may be indirect and involve placing containers holding the composition in an area and allowing the composition to be dispersed via natural phenomena such as wind and rain (Paragraph [0124], lines 9-11). Messina discusses patterned applications as well, stating these patterns may be in any shape, like circular or square, or may be random (Paragraph [0161], lines 1-7). Messina discloses the repellant composition need not cover the entire area to be effective and the area covered by the composition may be altered accordingly to achieve the desired repellent effect (Paragraph [0161], lines 1-7).
Messina does not teach including beta-ocimene in pesticide compositions.
It would have been prima facie obvious to a PHOSITA before the effective filing date of the claimed invention to have optimized the locations at which the mixture was applied within an area to maximize its pest-repellant coverage and minimize phytotoxicity (MPEP 2144.05(II)). For example, Tuzun discloses undiluted essential oils display phytotoxicity (p. 15, lines 21-23), so if phytotoxicity were observed a PHOSITA would have been motivated to spread the mixture more sparsely over a given area to minimize this undesirable effect. In contrast, if the pest-repellent effect was too weak, a PHOSITA would have been motivated to apply more of the mixture at a given location to achieve greater coverage, as disclosed by Messina, to strengthen its pest-repellent effect.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIANNA L BAUER whose telephone number is (571)272-5752. The examiner can normally be reached 8am-5pm.
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/B.L.B./Examiner, Art Unit 1623
/ADAM C MILLIGAN/Supervisory Patent Examiner, Art Unit 1623