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 .
Response to Arguments
Applicant's arguments filed 01/07/2026 have been fully considered but they are not persuasive. Applicant argues (Page 3) the prior art teaching of Otte fails to blend the combination of individual coconut free fatty acids with ethanol and/or hexane. The prior art teachings of Otte comprises a combination of the claimed fatty acids and ethanol.
Applicant additionally argues (Page 6) the prior art teachings of Targosz fails to teach or suggest the claimed coconut free fatty acids blended with ethanol and/or hexane. It is noted from the previous office action Tragosz teaches the claimed coconut free fatty acids in a combination composition comprising amides, wherein the amides include ethanol.
For the reasons above the 102 and 103 rejections of record is maintained.
Applicant has overcome the 101 rejection of claims 1-12 and 17-21 and claim objections of claims 1 and 11 by the amendment to claims 1 and 11. The 101 rejections of claims 1-12 and 17-21 has been withdrawn.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-2 and 21 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Otte et al. (US 20190136272 A1).
Regarding claims 1-2 and 21, Otte teaches a method for the production of one or more insect pheromones comprising compositions of one or more fatty alcohols, one or more fatty aldehydes and/or one or more fatty acetates (abstract). Of the insects Otte teaches various amounts of fruit flies (Table 3). Otte additionally teaches in some embodiments one or more naturally occurring plants comprise coconut in which the coconut oil can have lauric acid, myristic acid, caprylic acid, capric acid and oleic acid (relevant to claims 1-2 and 21) (para. 0118, 0125, 0299).
In terms of being a fruit fly oviposition-determent and reduce B. dorsalis attraction and oviposition, the limitations is of intended use and thus anticipated by Otte as per MPEP 2111.02 II: If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 2020 USPQ2d 10701 (Fed. Cir. 2020).
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 1-21 are rejected under 35 U.S.C. 103 as being unpatentable over Targosz (US Patent No. 5496857 A) in view of Terrell (US Patent No. 9210924 B1).
Regarding claims 1-21, Targosz teaches a method for the control of whiteflies and other insects of fruit flies that attack crops and fruits comprising a composition of an environmental sprayable easy-to-use insecticide which consist of a synergistic blend of cottonseed oil amides, coconut oil amides, tall oil amides and a nonionic surfactant, as well as a chelating agent, a viscosity control agent and free amine (relevant to claim 12) (abstract, column 1; para. 2). Of the amides Targosz teaches fatty acids of capric, caprylic, oleic, lauric, myristic, stearic, linoleic acid and ethanol (relevant to claims 1-8 and 13-15 and 21) (column 4, 2nd para., column 9; last para. to column 10; 1st para.). Targosz additionally teaches the composition comprising carriers which include vegetable oil (relevant to claims 10-11) (column 2; para. 5).
Regarding claims 9 and 16, the teachings of Targosz is obvious to the fatty acids being in the composition from about 2mg dose to about 20 mg dose as the concentration of the fatty acids are not patentable unless proven critical as per MPEP 2144.05 (II)A: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Targosz fails to teach the above composition as a kit.
Terrell teaches an ecofriendly pest management spray in the form of a kit for pest of mosquitos and flies.
Therefore, it would have been obvious to someone of ordinary skill in the art at the time of filling to have developed the composition taught by Targosz as a kit (relevant to claims 17-19). One would have been motivated to do so from the teachings of Targosz of an environmentally safe sprayable composition comprising coconut free fatty acids and ethanol and Terrell of a sprayable kit which is eco-friendly to be used against flies. There is a reasonable expectation of developing the composition taught by Targosz as a sprayable eco-friendly kit to deter the oviposition of fruit flies on fruit.
It would have additionally been obvious to have the composition in kit form wherein the fatty acids are from about 2mg dose to about 20 mg dose (relevant to claim 20) as the concentration of the fatty acids are not patentable unless proven critical as per MPEP 2144.05 (II)A: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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MIKHAIL O'DONNEL. ROBINSON
Examiner
Art Unit 1627
/MIKHAIL O'DONNEL ROBINSON/Examiner, Art Unit 1627
/SARAH PIHONAK/Primary Examiner, Art Unit 1627