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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 06/02/2026 has been entered.
Response to Arguments
Applicant’s arguments, see Pages 2-3, filed 05/04/2026, with respect to the 102 rejections of claims 1-2 and 21 over Otte et al. (US 20190136272 A1) have been fully considered and are persuasive. The rejection of claims 1-2 and 21 over Otte et al. (US 20190136272 A1) has been withdrawn. Applicants’ argument, see Pages 4-5, with respect to the 103 rejection of claims 1-20 over Targosz (US Patent No. 5496857 A) in view of Terrell (US Patent No. 9210924 B1) is rendered moot, however applicants’ argument in regards to claim 21 is persuasive in light of the amendment to claim 21 to exclude caprylic acid.
In terms of claims 1-20 Applicant argues (page 5) Targosz teaches an insecticide synergistic blend of cotton seed oil amides, coconut oil amides, tall oil amides, a non-ionic surfactant, a chelating agent, and a free amine and fails to teach or suggest at least one of the specific CFA in the claimed blends.
It is noted from the previous office action Targosz teaches the synergistic blend in which the amides are oil-containing ethanolamides that are reacted with cottonseed oil, coconut oil and tall oil. Of the reactants Targosz teaches myristic acid, stearic acid, linoleic acid, capric acid, caprylic acid, oleic acid and lauric acid. Therefore, the 103 rejection of claims 1-20 over Targosz (US Patent No. 5496857 A) in view of Terrell (US Patent No. 9210924 B1) is maintained.
Applicant has canceled claim 4. Claims 1-3 and 5-21 is now pending. Claims 1-3 and 5-21 is now evaluated on its merits.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-3 and 5-21 are rejected under 35 U.S.C. 101 because the claimed invention is directed to natural products without significantly more. The claims recite a method for deterring fruit fly comprising administering a blend of ethanol and/or hexane and hydrolyzed coconut free fatty acids (CFA), wherein the CFA’s are caprylic acid (C8:0), capric acid (C10:0), lauric acid (C12:0), stearic acid (C18:0), myristic acid (C14:0), oleic acid (C18:1), linoleic acid (C18:2), heptanoic acid (C7:0) as well as the blend of ethanol and/or hexane with fatty acids of pelargonic acid (C9:0), methyl caprylate (C8:0 ME), methyl pelargonate (C9:0 ME), methyl caprate (C10:0 ME), methyl undecanoate (C11:0 ME), methyl laurate (C12:0 ME), methyl tridecanoate (C13:0 ME), and methyl pentadecanoate (C15:0 ME). The claims are evaluated below using the “Subject Matter Eligibility Test for Products and Process” flow chart as shown in MPEP § 2106 III.
Step1: Is the claim to a process, machine, manufacture or composition of matter?
The claims are drawn to a composition of matter, as well as a process of using a composition of matter.
Step 2A Prong 1: Does the claim recite an abstract idea, law of nature, or natural phenomenon?
Yes, claims 1-3 and 5-21 recite natural products of ethanol and/or hexane blended with at least two hydrolyzed coconut free fatty acid of caprylic acid (C8:0), capric acid (C10:0), lauric acid (C12:0), stearic acid (C18:0), myristic acid (C14:0), oleic acid (C18:1), linoleic acid (C18:2), and ethanol and/or hexane blended with at least one fatty acid of heptanoic acid (C7:0), pelargonic acid (C9:0), methyl caprylate (C8:0 ME), methyl pelargonate (C9:0 ME), methyl caprate (C10:0 ME), methyl undecanoate (C11:0 ME), methyl laurate (C12:0 ME), methyl tridecanoate (C13:0 ME), and methyl pentadecanoate (C15:0 ME).
Step 2A Prong 2: Does the claim recite additional elements that integrate the judicial exception into a practical application?
Claims 2-3 and 5-20 recites additional elements of different variations of blended CFAs with a carrier of vegetable oil in forms of a concentrate, solution, spray, powder, granule, gel, wax, net or film. The limitations fail to meaningfully limit the claims of merely having natural agents, thus the limitations do not integrate the judicial exception into a practical application therefore directing the claim to judicial exception.
Step 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception?
No, the additional limitations in claims 2-3 and 5-20 does not add an inventive step and
does fails to amount to significantly more that judicial exception, the claims merely recite natural agents as stated in MPEP § 2106.04 (b) “ The law of nature and natural phenomenon exceptions reflect the Supreme Court's view that the basic tools of scientific and technological work are not patentable, because the "manifestations of laws of nature" are "part of the storehouse of knowledge," "free to all men and reserved exclusively to none." Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130, 76 USPQ 280, 281 (1948)”. Although the claims are drawn to a method of treatment with an administration step, there was no claimed conditions of treatment drawn by the claims. Ultimately, the claims are drawn to just applying the natural products without addition of significantly any more.
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 1-3 and 5-20 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 1-3 and 5-20, 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). Targosz additionally teaches the synergistic blend in which the amides are oil-containing ethanolamides that are reacted with cottonseed oil, coconut oil and tall oil and the amides of fatty acids of capric, caprylic, oleic, lauric, myristic, stearic, and linoleic acid (relevant to claims 1-3, 5-8, 13-15 and 20) (column 4, 2nd para., column 8, para. 1-3; 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
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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
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