DETAILED ACTION
Status of Application
Receipt of the response to the non-final office action, the amendments to the specification and claims as well as applicant arguments/remarks, filed 03/04/2026, is acknowledged. Amendments to the specification have been entered.
Claims 1-4, 6-7 are pending in this action. Claim 5 has been cancelled. Claims 1, 4 have been amended. Claims 1-4, 6-7 are currently under consideration.
Any rejection or objection not reiterated in this action is withdrawn. Applicant's amendments necessitated new ground(s) of rejection presented in this office action.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Priority
This application is a continuation-in-part of U.S. Patent Application No. 16/760,675, filed Apryl 30, 2020 and now abandoned, which is a 371 of PCT/US2018/058636, filed November 1, 2018, which claims benefit of provisional U.S. Application No. 62/581,225, filed November 3, 2017.
Claim Objections
Claim 4 is objected to because of the following informalities: The acronym “GABA” recited in claim 4 should be removed, because said acronym is not used in subsequent claims. Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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.
Claims 4, 6-7 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 pre-AIA the applicant regards as the invention.
Newly amended claim 4 recites the limitation “the method comprises fumigating the space or soil with a monoterpene” that is not reasonably clear. In the present case, it is unclear what is used in the claimed method - monoterpene (i.e., a compound) as instantly claimed, OR a composition comprising a monoterpene as instantly claimed. Clarification is required.
Claim 6 depends on cancelled claim 5. Clarification is required.
Claim 7 is rejected as being dependent on rejected independent claim 4 and failing to cure the defect.
Claim Rejections - 35 USC § 102(a)(1)/103
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.
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 1-4, 6-7 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Bessette, US 2007/0098750 (cited in IDS; hereinafter referred to as Bessette); or Souter et al., US 2003/0060379A1 (cited in IDS; hereinafter referred to as Souter).
Bessette teaches pesticidal compositions and methods for using said compositions for the control of pests by applying/fumigating (Para. 0062, 0069) said compositions to a location where pest control is desired, e.g., against flies, thrips, etc. (Para. 0002, 0020, 0032, 0036 as applied to claims 1, 3-4, 7). Bessette teaches that said compositions may include: (i) at least one plant essential oil compound as a pesticidally active ingredient, e.g., d-pulegone, carvacrol, estragole, linalool, trans-anethole (Claims 1-2, 6; Abstract; Para. 0052 as applied to claims 1-2, 4, 6), i.e., compounds/monoterpenes of Formula I (see instant specification, Para. 0014); in combination with other constituents, such as (ii) synergist, i.e., a compound to increase the effectiveness of a pesticide's active ingredient (Para. 0008); (iii) surfactants, a carrier, a diluent, a wetting agent, a dispersing agent, an emulsifying agent to control delivery of compositions (Para. 0008, 0030, 0056, 0063). Bessette teaches that said composition can be used against such flies as Drosophila melanogaster (Para. 0070 as applied to claims 3, 7).
Souter teaches compositions for controlling insect pests, e.g., thrips, fruit flies, and comprising an effective, insect controlling amount of at least one component such as D-pulegone (also known as (+)-pulegone), carvacrol, linalool, anethole, etc. (Claims 4, 10; Abstract; Para. 0010, 0015, 0022, 0033, 0035, 0052 as applied to claims 1-4, 6-7), and also may include a dispersant, e.g., an organic/ignorant solvent (Para. 0032); wetting agents (Para. 0039); a sequestering agent (Para. 0039, 0040), a surfactant (Para. 0024, 0040, 0043), and a synergist/piperonyl butoxide (Para. 0015; Examples). Further, Souter teaches that said compositions may also include (i) water and/or organic solvent/alcohols as a carrier (Para. 0018, 0019, 0024, 0032-0033, 0045); (ii) alkylphenol ethoxylate (i.e., wetting agent; Para. 0040 as applied to claim 6); (iii) guar gum (i.e., thickener; Para. 0044); (iv) xanthan gum (i.e., anti-setting agent; Para. 0021, 0044); (v) silica (i.e., anti-foam agent; Para. 0026, 0050).
Therefore, the cited references disclose compositions, which appear to be identical to the presently claimed compositions to be used in the claimed method for controlling insect pests. Consequently, said claims appear to be anticipated by the references recited. Alternatively, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare the compositions as taught by the references cited to be used for controlling insect pests. One would do so with expectation of beneficial results, because the cited prior art teaches compositions that have a broad spectrum of activity and are particularly advantageous in terms of its relative non-toxicity (i.e., Bessette), and also teaches compositions that provide synergistic enhancement of insecticidal/pesticidal activity, improved efficacy, and have an improved safety and environmental profile (i.e., Souter).
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
US 2015/0140136, US 2005/0170025, US 2002/0028256 (all cited in IDS) – teaches compositions against flying insects, wherein said compositions may include (i) d-pulegone, estragole, linalool, trans-anethole, carvacrol, in combination with (ii) carrier, diluent, emulsifying agents, wetting agent, dispersing agent, surfactant(s), synergist/piperonyl butoxide, and (iii) can be used for fumigating.
US 2003/0060379 (cited in IDS) - teaches a method for controlling insect pests by exposing insect pests (e.g., fruit flies, thrips) to a composition comprising an effective, insect controlling amount of D-pulegone (also known as (+)-pulegone), carvacrol, linalool, anethole, etc. (Claims 4, 10; Abstract; Para. 0010, 0015, 0022, 0033, 0035).
Response to Arguments
Applicant's arguments, filed 03/04/2026, have been fully considered, but they were not found to be persuasive for the reasons set forth above. New arguments and/or references have been added to the record to address newly introduced amendments and to clarify the position of the examiner. Applicant is advised to clarify the structure of the claimed composition to be used in the claimed method and clearly point out the patentable novelty, which the applicant thinks the claims present in view of the state of the art disclosed by the references cited, to place the application in condition for allowance.
Conclusion
No claim is allowed at this time.
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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to OLGA V. TCHERKASSKAYA whose telephone number is (571)270-3672. The examiner can normally be reached 9 am - 6 pm, Monday - Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert A. Wax can be reached at (571) 272-0623. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/OLGA V. TCHERKASSKAYA/
Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
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