DETAILED ACTION
Claim Status
The amended claim set of 04 Mar 2026 has been entered and reviewed. Claims 42 have been amended.
Claims 1-42 are pending.
Election/Restrictions
Applicant’s election of Group 1, claims 1-22 and 35-41, directed to a synergistic botanical based bio-stimulant, bio-acaricidal composition in the reply filed on 04 March 2026 is acknowledged. Applicants also elected that the adjuvant is silicone polyether, the organic emulsifier is cetearyl glucoside, and the carrier oil is sesame oil. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
The requirement is still deemed proper and is therefore made FINAL.
Claims 17-34 and 42 are withdrawn from further consideration by the examiner, pursuant to 37 CFR 1.142(b), as being drawn to a non-elected invention / species. Claims 17-24 are part of the elected group but require alternative species from the elected species. For example, the claims require canola oil instead of sesame oil and guar gum instead of cetearyl glucoside.
Claims 1-16 and 35-41 are under consideration to the extent of the elected species, i.e., that the adjuvant is silicone polyether, the organic emulsifier is cetearyl glucoside, and the carrier oil is sesame oil.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d).
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 13 Nov 2023 is in compliance with the provisions of 37 CFR 1.97, except where noted. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claims 1-16, 36 and 41 are objected to because of the following informalities:
Components i-xxiv of claim 1 unnecessarily capitalize “Enriched and Purified” and “Purified Phyto” which should be lowercase.
Component iii of claim 1 unnecessarily capitalizes “Eugenyl.”
Components xvi and xvii of claim 1 recite “natural sugars glucose” but “sugars” should be the singular form “sugar.”
Component ii of claim 1 has a end parenthesis “)” with no matching beginning and should be removed.
In claim 9, silicone should not be capitalized.
Claim 16 capitalizes Phyto unnecessarily.
Claims 2-16 and 41 unnecessarily capitalized “Claim.”
In claim 10, “aloevera” should be written as two words.
Claim 8 repeats “lecithin” unnecessarily.
In claim 11, polysorbate should not have a space between “poly” and “sorbate.”
Claim 11 unnecessarily capitalizes “Lecithin.”
In claim 15, the article “a” should be inserted between “comprises combination.”
In claim 36, the preposition “in” should be included between “claimed claim.”
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 1-16 and 35-41 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.
Regarding claim 1, use of the phrases “more preferably” and "such as," renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). Claims 2-16 and 35-41 are included in this rejection as they depend directly, indirectly, or include all the limitations of independent claim 1.
Claim 1 is indefinite for “said botanical source” in each of components i-xxiv as this lacks proper antecedent basis. Nothing in the claim is referred as the “botanical source” and there are many components which may potentially be a “botanical source” and it is unclear what “said botanical source” is intended to refer to. Claims 2-16 and 35-41 are included in this rejection as they depend directly, indirectly, or include all the limitations of independent claim 1.
Claims 1-7 are indefinite in reciting, for example, “a concentration in a range of 0.001-35 %”, etc. The claims are unclear because no units for the percent concentration are given (e.g., vol/vol, wgt/vol, wgt/wgt) and one skilled in the art, therefore, would not be reasonably apprised of the metes and bounds of the claims. Claims 8-16 and 35-41 are included in this rejection as they depend directly, indirectly, or include all the limitations of independent claim 1.
Regarding claims 8, 10, 11, 12, 35, 37, 40, the phrase "and the like" renders the claim(s) indefinite because the claim(s) include(s) elements not actually disclosed (those encompassed by "and the like"), thereby rendering the scope of the claim(s) unascertainable. See MPEP § 2173.05(d).
Regarding claims 16 and 35, the phrase "such as," renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 37, use of the phrases “more preferably” and "such as," renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 6 lacks proper antecedent basis for “said non-ionic emulsifiers.” Claim 1 recites “non-anionic emulsifiers” but not “non-ionic emulsifiers.”
Claim 8 lacks proper antecedent basis for “said adjuvants” as there are no adjuvants recited in claim 1 from which it depends.
Claim 11 is unclear in the recitation of “non-anionic emulsifier.” Claim 1 recites “non-anionic emulsifiers” which is plural and indicates more than one non-anionic emulsifier. Claim 11 recites “non-anionic emulsifier” which is singular and it is unclear if each of the non-anionic emulsifiers of claim 1 are to be selected from the list of claim 11 or if only one non-anionic emulsifier is required to be from the list of claim 11.
Claim 1 is indefinite in reciting for component xiii “(zeaxanthin, lutein, β-carotene)” as it is unclear if the limitation in the parenthesis is intended be required or if it is merely exemplary.
Claim 8 recites “amine surfactant or amine surfactant ingredient.” It is not clear what difference is intended between an amine surfactant and amine surfactant ingredient, rendering the claim unclear as to what the metes and bounds of the claim is.
Claim 10 is indefinite in reciting “(sapindus mukorassi)” as it is unclear if the limitation in the parenthesis is intended be required or if it is merely exemplary.
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 14, 40 and 41 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 2 recites that the composition “may comprise an adjuvant.” The phrase “may comprise” indicates that the adjuvant can be present but it is not necessary and thus the claim does not require adjuvants. Thus, the claim does not further limit claim 1 from which it depends as it does not require an additional feature to be present and does not further limit claim 1 but merely recites an adjuvant that may or may not be present.
Claim 14 recites that the particle size is in the range of 1-100 nanometer. Claim 14 depends from claim 13 which recites that the size is from 10-1000 nanometer. Claim 14 thus fails to further limit claim 13 but instead broadens the lower limit for acceptable particle sizes to below 10 nanometers.
Claims 40 and 41 recite forms that the composition “may be in.” The phrase “may be in” indicates these forms as possibilities for the composition but does not require the composition to be in one of the listed forms. Thus, the claims do not further limit claim 1 from which they depend as they do not require a particular form for the composition but merely recite forms that it may possibly be in.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 1-12, 15, 16, and 35-41 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a natural phenomenon without significantly more.
Claim interpretation: Under the broadest reasonable interpretation, the terms of the claim are presumed to have their plain meaning consistent with the specification as it would be interpreted by one of ordinary skill in the art. See MPEP 2111.
Claim 1 is directed to a synergistic botanical based bio-stimulant, bio-acaricidal composition for controlling pests and that comprises botanical components i-xxiv as well as an organic emulsifier, anionic emulsifier, non-anionic emulsifier and carrier oil in various percentages.
Since the claim states ‘comprising’ language which is open language, allowing for the incorporation of unclaimed/undisclosed subject matter, the composition may include additional components not recited.
Claims 2-7 further limit the concentrations for the components. Claims 8-12 recite specific species for the emulsifiers and oil components. Claims 15 and 16 recite combining extracts and phyto ingredients. Claims 35, 38 and 39 recite various uses and effects of the composition. Claim 36 recites a concentration for the composition. Claims 37, 40, and 41 recite potential means of applying the composition and forms of the composition such as liquid form.
In accordance with the 2019 Revised Patent Subject Mater Eligibility Guidance (aka 2019 PEG), the following analysis is based on the flowchart found in MPEP §2106(III) and is used when considering whether or not a claimed invention recites eligible subject matter.
Step 1: Is the claim to a process, machine, manufacture or composition of matter?
Yes, claims 1-12, 15, 16 and 35-41 are directed to a composition of matter.
Step 2A: Is the claim directed to a judicial exception (i.e. a law of nature, a natural phenomenon (product of nature) or an abstract idea)?
Analysis of Step 2A is divided into two prongs.
Step 2A Prong One: Does the claim recite an abstract idea, law of nature or natural phenomenon?
This part of the eligibility analysis evaluates whether the claim recites a judicial exception. As explained in MPEP 2106.04(II), a claim “recites” a judicial exception when the judicial exception is “set forth” or “described” in the claim.
Claim 1 is directed to synergistic botanical based bio-stimulant, bio-acaricidal composition comprising various natural botanical components. The claim requires emulsifiers and oils which are not limited and encompass natural emulsifiers and oils. Claims 8-12 recite specific emulsifier and oil species but encompasses natural components such as lecithin, amine surfactants, aloe vera extract and sesame oil. The remainder of the claims limit various amounts for the components and specify potential forms for the composition and uses for the composition but do not require the inclusion of non-natural components. Thus, the botanical based composition in the claims is natural in origin.
Since the composition contains products which are naturally-occurring, the claim is ‘directed to’ a nature-based product. Since the claims recite a nature-based product limitation, the markedly different characteristics analysis is used to determine if the nature-based product limitation is a product of nature exception. MPEP 2106.04(c)(I). The markedly different characteristics analysis is performed by comparing the nature-based product limitation in the claim to its naturally occurring counterpart to determine if it has markedly different characteristics from the counterpart. MPEP 2106.04(c)(II). Here, the closest natural counterpart is naturally occurring botanical extracts, emulsifiers and oils as they occur separately in nature. There is no indication that mixing the botanical extracts, emulsifiers and oils would change the structure, function or other characteristics of the individual components in any way. Rather, when mixed, each of the individual components would retain its naturally-occurring structure and function.
Even when considering the distinct percentages and concentrations of each component as recited in the claims, the percentages do not impart any markedly different qualities or characteristics to the components. Thus, by combining the claimed botanical extracts, emulsifiers and oils the applicants have not altered the components in any way. The effect that the composition has on pests and crops (claims 35, 38 and 39) only indicates the properties that the composition has and does not impart different qualities to the natural components. Similarly, the application of the composition as a spray (claim 37) or in a form such as liquid (claims 40 and 41) does not require any additional non-natural components or alteration for formation and thus, the limitations do not impart markedly different qualities of the components from their natural counterparts.
Therefore, the claims recite a product of nature exception. Association for Molecular Pathology v. Myriad Genetics Inc., 569 U.S. 576, 589-90 (2013) (naturally occurring things are “products of nature” which cannot be patented). Accordingly, the claim recites a judicial exception, and the analysis must therefore proceed to Step 2A Prong Two.
Step 2A Prong Two: Does the claim recite additional elements that integrate the judicial exception into a practical application?
This part of the eligibility analysis evaluates whether the claim as a whole integrates the recited judicial exception into a practical application of the exception. This evaluation is performed by (1) identifying whether there are any additional elements recited in the claim beyond the judicial exception, and (2) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application. MPEP 2106.04(d)II.
The claims recite amounts for the components of the composition and the effect that the composition has on plants and pests and the form that the compositions may take, however, as described above, there is no indication that these features impart any markedly different qualities or characteristics to the components. Thus, the claims do not present elements or components in addition to the judicial exception that could be interpreted as imposing a meaningful limitation over the claim scope. Accordingly, the claims do not integrate the recited judicial exception into a practical application and the claims are therefore directed to the judicial exception.
Step 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception?
This part of the eligibility analysis evaluates whether the claim as a whole amounts to significantly more than the recited exception, i.e., whether any additional element, or combination of additional elements, adds an inventive concept to the claim. MPEP 2106.05. As discussed with respect to Step 2A Prong Two, the claims do not recite an additional element beyond the natural components of the composition and the amounts of the components and the form of the composition and the effect that the composition has on plants and pests. The examiner notes that the presence of each of the components in a single composition would necessarily require distinct percentages of each component in the composition and there is nothing to indicate that the percentage of each component as recited offers a distinct or inventive concept to the claim. Similarly, the effect of the composition merley describes the properites that the components have when combined and the form such does not alter the natural components. Therefore, the claims do not include any additional element which would amount to ‘significantly more’ than the judicial exception itself and thus the claims as a whole do not amount to significantly more than the judicial exception.
Conclusion: The claims, which are directed toward a composition comprising the natural components botanical extracts, emulsifiers and oils, are not markedly different in structure or function as compared to the closest naturally-occurring counterpart. Subsequently, claims 1-12, 15, 16 and 35-41 are directed toward a judicial exception under 35 USC 101. The claims do not recite any element which would be considered to provide ‘significantly more’ than the judicial exception.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim Interpretation
The instant claims recite a synergistic botanical based bio-stimulant, bioacaricidal composition. The claims require the composition to comprise botanical components i-xxiv to be present as well as an organic emulsifier, anionic emulsifier, non-anionic emulsifiers and carrier oils to be present.
Claims 1-13, 16, and 35-41 are rejected under 35 U.S.C. 103 as being unpatentable over Chiasson (US 2003/0091657, published 15 May 2003) in view of Pavela (CZ34439U1, published 06 Oct 2020), DeWolff (US 2008/0193387, published 14 Aug 2008), Singh et al. (Exp Appl Acarol (2017) 71:303–317), In (KR20200072777A, published 23 Jun 2020), Wang et al. (CN101692822A, published 14 Apr 2010), Mech et al. (International Journal of Science and Research (IJSR), Volume 4 Issue 5, May 2015), Shah et al. US 8,137,725, published 20 Mar 2012), Eltaly et al. (International Journal of Veterinary Science 12(2): 255-259, published 10 Jul 2023), Nwanade et al. (Parasites Vectors (2021) 14:330), Samaniego (US 2021/0400989, published 30 Dec 2021), Kemal et al. (Journal of Parasitology Research Volume 2020, Article ID 7834026, 10 pages), and Quadros et al. (Insects 2020, 11, 490; doi:10.3390/insects11080490) as evidenced by the instant specification and evidenced by G-biosciences (What’s the Difference Between Tween 20 and Tween 80?.
Chiasson teaches botanical acaricides (abstract). Chiasson teaches that botanical pesticides offer the advantage of being naturally derived compounds that are safe to both humans and the environment ([0007]). Chiasson teaches an essential oil extract derived from plant material and comprising components including limonene (rendering obvious component viii), α-terpinene (rendering obvious component ix), ρ-cymene (a component of Acorus calamus as evidenced by the instant specification Table 2 line 13 rendering obvious component xviii), and carvacrol (rendering obvious component xix) ([0054]). Chiasson teaches the composition has insecticidal activity ([0055]) and is for use in controlling plant pests ([0060]) such as acari ([0066]) including mites such as spider mite Tetranychus urticae ([0067]), rendering obvious claims 35, 38 and 39 as the removal of unwanted pests renders obvious a use for improved plant growth. Chiasson teaches that the essential oil extracts are from plant material ([0069]) and are partially purified but can be further purified using routine and well known methods ([0071]), rendering obvious claims 15 and 16 and the combination of enriched botanical extracts and purified phyto ingredients. Chiasson teaches the compositions with a suitable carrier ([0057]). Chiasson teaches forms of emulsions, aerosols, sprays or other liquid preparations ([0102]), rendering obvious claims 37, 40 and 41. Chiasson teaches that the choice of dispersing and emulsifying agents and the amount combined is determined by the nature of the formulation and the ability of the agent to facilitate the dispersion of the essential oil extract of the present invention while not significantly diminishing the acaricidal, insecticidal, and/or fungicidal activity of the essential oil extract ([0102]). Chiasson teaches emulsifying agents include blends of non-ionic and anionic emulsifiers ([0104], [0105]). Chiasson teaches non-ionic emulsifiers such as Tween™ 80 and Tween™ 20 ([0105]), rendering obvious the polysorbate 20 and 80 of claim 11, as evidenced by G-biosciences Tween is polysorbate (page 1 What is Tween®?).
Chiasson teaches that the formulation can contain a final concentration of 0.125% to 10% by volume of essential oil extract and the formulation may be a concentrate that is diluted before use and that a person skilled in the art will understand that the concentration can be modified in accordance with particular needs so that the formulation is acaricidal, insecticidal, and/or fungicidal, but not phytotoxic ([0109]). Chiasson similarly teaches that the dosage of the essential oil extract is dependent upon factors such as the type of pest, carrier used, the method of application and climate conditions for application and the type of formulation and that the effective dosage can be readily determined by persons of skill in the art ([0115]).
Chiasson does not teach the inclusion of components i-vii, x-xvii, xx-xxiv or the inclusion sesame oil (elected species of carrier oil), silicone polyether (elected species of adjuvant) and cetearyl glucoside (elected species of organic emulsifier) and the amount of emulsifier and carrier oil. These deficiencies are made up for in the teachings of Pavela, DeWolff, Singh, In, Wang, Mech, Shah, Eltaly, Nwanade, Samaniego, Kemal, and Quadros.
Pavela teaches a plant protection product against pests and diseases and teaches that insecticidal or acaricidal plant protection products are usually synthetically produced but Pavela teaches a composition comprising Pongamia pinnata fruit seed oil from 20-90% (page 1), rendering obvious component vi of claim 1. Pavela teaches the composition against insect pests and diseases such as spider mites and fungal diseases (page 2 middle). Pavela teaches the inclusion of nonionic or ionic emulsifiers (page 2 paragraph 4) from 0.5 to 20% by weight (claims 1-4).
DeWolff teaches compositions comprising Lippia javanica essential oil with other essential oils for killing or repelling ectoparasites or pests such as lice, ticks, mosquitoes, mites, ants and fleas (abstract). DeWolff teaches that essential oils for the compositions include α-terpineol and linalool (rendering obvious component x of claim 1) and eugenol (rendering obvious component iii of claim 1) and cumin aldehyde (rendering obvious component xxiv of claim 1) ([0066]). DeWolff also teaches Rosmarinum officinalis oil ([0099]), rendering obvious component xv of claim 1. DeWolff teaches that the compositions comprise a carrier ([0120]) such as sesame oil ([0131]) and that the carrier is present from 0-70% ([0124]). DeWolff teaches the inclusion of non-ionic and/or anionic emulsifiers to aid in the dispersion of the essential oils into the carrier fluid ([0154]) and teaches emulsifiers such as cetearyl glucoside and polysorbate 20 ([0137]). DeWolff teaches that the compositions comprise a silicone to impart lubrication qualities or viscosity and teaches silicones such as dimethicone copolyol (which is a polymer of dimethyl-siloxane with polyoxyethylene and/or polyoxypropylene, thereby rendering obvious a silicone polyether as in the instant claims) ([0144]) and teaches that silicone is present from 0-20% ([0151]).
Singh teaches that Piper longum and Piper nigrum extracts can be used to effectively control ticks and have potential for development of eco-friendly acaricides to counter-act problems associated with chemical acaricides (abstract, page 315 last paragraph). P. longum and P. nigrum render obvious components xxi and ii of claim 1.
In teaches a natural plant-derived red mite acaricide composition comprising components including clove extract and neem (Azadirachta indica) oil (title, abstract). The clove extract is from 10-20 parts by weight and the neem oil is 25-50 parts by weight ([0018]). The clove extract renders obvious component iii and Azadirachta indica oil renders obvious component xxiii of claim 1.
Wang teaches applications of lupeol (title) for the preparation of plant acaricides (page 1 lines 14-15) where lupeol is from 20-50% (page 1 line 4). Lupeol renders obvious components xii, xvi and xvii of claim 1.
Mech teaches Parthenium hysterophorus has good acaricidal activity (page 903 conclusion) and that Lantana camara has adulticidal effects on red spider mites (page 903 left column). Parthenium hysterophorus and Lantana camara render obvious components xiv and xx of claim 1.
Shah teaches dill (Anethum graveolens) oil as a potentiator for a pesticide such as an insecticide (abstract, col 2 line 8) and useful in control of arthropods such as acarines (col 10 lines 19-21). Shah teaches the inclusion of UV screening agents such as β-carotene from about 0.005-50% w/w which provides protection of UV-sensitive agrochemicals from UV-light (col 9 lines 15-32). Dill and β-carotene render obvious components vii and xiii.
Eltaly teaches Zingiber officinale extract as a highly effective eco-friendly acaricide (abstract). Zingiber officinale extract renders obvious component v.
Nwande teaches acaricidal activity of Cinnamomum cassia extract and the extract as a botanical based larvicidal and nymphicidal agent for tick control (abstract, page 10 conclusions). Cinnamomum cassia extract renders obvious component i.
Samaniego teaches that garlic extract Allium sativuum has an effect on the nervous system of mites and insects in general (abstract). Samaniego teaches acaricidal compositions that include Alllium sativuum ([0013]). Allium sativuum renders obvious component iv.
Kemal teaches Ricinus communis as an acaricidal and demonstrating tick mortality (abstract, page 4 left column, page 8 left column). Ricinus communis renders obvious component xi.
Quadros teaches that Annona squamosa exhibits acaricidal activity (page 9 lines 7-12). Annona squamosa renders obvious component xxii of claim 1.
Therefore, it would have been prima facie obvious to one of ordinary skill in the
art, before the effective filing date of the claimed invention to have included components that meet the limitations of components i-vii, x-xvii and xx-xxiv of instant claim 1 and to further include 0-70% sesame oil, 0-20% dimethicone copolyol and 0.5 to 20% cetearyl glucoside as part of the acaricidal composition rendered obvious by Chiasson. Botanical acaricide compositions comprising components such as limonene, α-terpinene, ρ-cymene and carvacrol (meeting the limitations of components viii, ix, xviii, and xix of claim 1) as well as a carrier and non-ionic and anionic emulsifying agents are known from Chiasson. Various extract components that meet the limitations of components i-vii, x-xvii, and xx-xxiv of claim 1 are taught by Pavela, DeWolff, Singh, In, Wang, Mech, Shah, Eltaly, Nwanade, Samaniego, Kemal, and Quadros as possessing acaricidal properties, as described above. Thus, it would have been obvious to one of ordinary skill in the art to combine the separate components into a composition for the purpose of using as an acaricidal composition. "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). Each of the components described above are known as possessing acaricidal type properties and thus it would be obvious to combine them for the same use of an acaricidal composition. Acaricidal compositions comprising 0.5 to 20% by weight nonionic or ionic emulsifiers are known from Pavela, rendering this an obvious amount to include the emulsifying agents in the composition of Chiasson as the compositions are for similar use as an acaricidal. Similarly, 0-70% sesame oil is a suitable carrier, cetearyl glucoside as an emulsifier and 0-20% dimethicone copolyol as a silicone component are known from DeWolff for compositions for treating mites and ticks, rendering it obvious to include them for similar acaricidal compositions taught by Chiasson as they merely represent known prior art elements for use for their known purpose as ingredients of compositions for treating acari such as mites and ticks.
Regarding the concentration of the individual components i-xxiv and the concentration of 0.5 to 2.0 mL/L of claim 36, the examiner notes that, as described above, the formulation of Chiasson may be a concentrate that is diluted before use and a person skilled in the art will understand that the concentration can be modified in accordance with particular needs so that the formulation is acaricidal, insecticidal, and/or fungicidal, but not phytotoxic the dosage of the essential oil extract is dependent upon factors such as the type of pest, carrier used, the method of application and climate conditions for application and the type of formulation and the effective dosage can be readily determined by persons of skill in the art. Thus, based on the teachings of Chiasson, the concentration and dosing of the essential oil is an art-recognized result effective variable such that determining the amount of each individual botanical component and that the concentration of the composition is between 0.5 to 2.0 mL/L would be a matter of optimization through routine experimentation. "[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). It is evident that one of ordinary skill would determine the optimal concentration for the components of the composition in order to achieve a composition that is acaricidal, insecticidal and fungicidal while remaining non phytotoxic.
Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references.
Claims 14 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Chiasson (US 2003/0091657, published 15 May 2003) in view of Pavela (CZ34439U1, published 06 Oct 2020), DeWolff (US 2008/0193387, published 14 Aug 2008), Singh et al. (Exp Appl Acarol (2017) 71:303–317), In (KR20200072777A, published 23 Jun 2020), Wang et al. (CN101692822A, published 14 Apr 2010), Mech et al. (International Journal of Science and Research (IJSR), Volume 4 Issue 5, May 2015), Shah et al. US 8,137,725, published 20 Mar 2012), Eltaly et al. (International Journal of Veterinary Science 12(2): 255-259, published 10 Jul 2023), Nwanade et al. (Parasites Vectors (2021) 14:330), Samaniego (US 2021/0400989, published 30 Dec 2021), Kemal et al. (Journal of Parasitology Research Volume 2020, Article ID 7834026, 10 pages), and Quadros et al. (Insects 2020, 11, 490; doi:10.3390/insects11080490) as evidenced by the instant specification and evidenced by G-biosciences (What’s the Difference Between Tween 20 and Tween 80? As applied to claims 1-13, 16 and 35-41 above and further in view of Jordan et al. (US 2020/0022364, 23 Jan 2020).
The teachings of Chiasson, Pavela, DeWolff, Singh, In, Wang, Mech, Shah, Eltaly, Nwanade, Samaniego, Kemal and Quadros are described supra. Chiasson, Pavela, DeWolff, Singh, In, Wang, Mech, Shah, Eltaly, Nwanade, Samaniego, Kemal and Quadros do not teach a particle size in the range of 10-1000 nanometers. This deficiency is made up for in the teachings of Jordan.
Jordan teaches compositions for modifying plant growth ([0007]) and teaches the compositions may comprise agricultural chemicals such as acaricides ([0034], [0060], [0096]). Jordan teaches that the composition may be a nano-emulsion ([0009]) and that nano-emulsions provide very desirable qualities of agricultural chemicals, namely greater solubility and stability, higher bioavailability and a higher dissolution rate and a smaller particle size ([0081]). Jordan teaches that the nano-emulsions have a micelle diameter greater than zero microns but not more than about 0.95 microns (i.e. 950 nm) ([0083]).
Therefore, it would have been prima facie obvious to one of ordinary skill in the
art, before the effective filing date of the claimed invention to have the composition rendered obvious by Chiasson, Pavela, DeWolff, Singh, In, Wang, Mech, Shah, Eltaly, Nwanade, Samaniego, Kemal and Quadros in the form of a nano-emulsion with micelle diameter from 0-0.95 microns (i.e. 0-950 nm). Compositions for acaricidal use are obvious from Chiasson, Pavela, DeWolff, Singh, In, Wang, Mech, Shah, Eltaly, Nwanade, Samaniego, Kemal and Quadros as described above, and it is known from Chiasson that the compositions may be emulsions. It is known from Jordan that plant growth compositions that may have acaricides may be structured as nano-emulsions with micelle diameters from 0-0.95 microns, which has very desirable qualities of agricultural chemicals, namely greater solubility and stability, higher bioavailability and a higher dissolution rate and a smaller particle size, rendering this an obvious particle size for the emulsion compositions and providing a reasonable expectation of success to one of ordinary skill.
Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references.
Conclusion
No claim is allowed.
Correspondence
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/E.C.M./Examiner, Art Unit 1619
/ANNA R FALKOWITZ/
Primary Examiner, Art Unit 1600