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 .
Claim Interpretation
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
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 1-3, 6, 7, 10-12, 14 and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ho (U.S. Publication No. 2013/0079408).
Concerning claims 1-3 & 14, Ho discloses a system for air sanitization comprising:
a. an antimicrobial formulation comprising:
(i) one or more organic acids comprising lactic acid (paragraphs 25, 36, & 46;
(ii) optionally, one or more diols (i.e., not needed to satisfy the limitations of the claim; and
(a) wherein the organic acids intrinsically have a vapor pressure in a range of 0.10 Pa to about 300 Pa at room temperature and standard pressure (paragraphs 25, 36 and 46); and
b. a device for creating aerosolized droplets of the antimicrobial formulation wherein an average particle size is less than about 150 µm (paragraph 72) so that the formulation provides at least a 3-log reduction against airborne Staphylococcus aureus and/or an airborne virus, or another airborne target microbe within 60 minutes or less (paragraphs 37, 65 and 76-82).
Regarding claims 6 & 7, Ho continues to disclose that the lactic acid is included in the formulation in an amount from about 2-4% (paragraph 82).
With respect to claim 10, Ho further discloses that the pH of the formulation is from about 2-6 (paragraphs 48 & 49).
Regarding claims 11 & 12, the reference continues to disclose that the system includes a citric acid buffer (paragraph 44).
Concerning claim 15, Ho also discloses that the device includes a cold or thermal fogger (paragraph 73).
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 4, 5, 8, 9 and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Ho (U.S. Publication No. 2013/0079408) in view of Tian et al. (U.S. Publication No. 2018/0140545).
Concerning claims 4, 5, 8, 16, 17, 19 and 20, Ho discloses a system for air sanitization comprising:
a. an antimicrobial formulation comprising:
(i) 0.1-5% by weight of at least one of lactic acid or citric (paragraphs 25, 36, 46 and 82);
(iii) a fragrance (paragraph 68);
Wherein the formulation comprises at least 80% by weight water (paragraph 68);
Wherein a pH of the formulation is from about 2-4 (paragraph 49);
Wherein the organic acids intrinsically have a vapor pressure of at least 0.02 Pa at room temperature and standard pressure (paragraphs 25, 36 and 46); and
b. a device for creating aerosolized droplets of the antimicrobial formulation wherein an average particle size is less than about 150 µm (paragraph 72) so that the formulation provides at least a 3-log reduction against airborne Staphylococcus aureus, and/or an airborne virus, or another airborne target microbe within 60 minutes or less (paragraphs 37, 65 and 76-82).
Ho does not appear to disclose that the formulation includes 1,2-hexanediol. Tian discloses a system for air sanitization (paragraphs 5 & 6) that comprises an antimicrobial formulation that includes lactic acid as a sanitizer (paragraph 61), and a device for creating aerosolized droplets of said antimicrobial formulation (paragraphs 58, 108 and 109). The reference continues to disclose that the antimicrobial formulation includes 0.5-10% by weight of 1,2-hexanediol in order to act as a plug-preventing additive to prevent the device from clogging (paragraphs 76 and 77). As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the antimicrobial formulation of Ho with 0.5-10% by weight of 1,2-hexanediol in order to act as a plug-preventing additive to prevent the device from clogging as exemplified by Tian.
Therefore, claims 4, 5, 8, 16, 17, 19 and 20 are not patentable over Ho in view of Tian.
With respect to claim 9, Ho in view of Tian does not appear to disclose that the concentration ratio of the 1,2-hexanediol to the lactic acid in the formulation is from about 3:1 to about 1:3. However, the Courts have held that "where 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." See In re Aller, 220 F.2d 454, 456,105 USPQ 233, 235 (CCPA 1955). The discovery of an optimum value of a known result effective variable, without producing any new or unexpected results, is within the ambit of a person of ordinary skill in the art. See In re Boesch, 205 USPQ 215 (CCPA 1980) (see MPEP § 2144.05, II.). Thus, it would have been well within the purview of one of ordinary skill in the art to provide the concentration ratio of the 1,2-hexanediol to the lactic acid in the formulation is from about 3:1 to about 1:3 in order to successfully prevent fogging devices from clogging by the formulation while continuing to provide the appropriate amount of sanitizer to actively achieve the expected log reduction against bacteria and viruses for a given fogging device in a given setting; as such is considered a result effective variable that would be optimized by one of ordinary skill through routine experimentation. Only the expected results would be attained.
As such, claim 9 does not provide a patentable distinction over Ho in view of Tian, and said claim 9 is rejected over the references of Ho in view of Tian.
Regarding claim 18, Ho continues to disclose that the device includes a cold or thermal fogger (paragraph 73).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Ho (U.S. Publication No. 2013/0079408).
Ho is relied upon as set forth above. Ho does not appear to disclose the percentage of the citric acid in the formulation. Nonetheless, the Courts have held that "where 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." See In re Aller, 220 F.2d 454, 456,105 USPQ 233, 235 (CCPA 1955). The discovery of an optimum value of a known result effective variable, without producing any new or unexpected results, is within the ambit of a person of ordinary skill in the art. See In re Boesch, 205 USPQ 215 (CCPA 1980) (see MPEP § 2144.05, II.). As such, it would have been well within the purview of one of ordinary skill in the art to provide the citric acid in the formulation at a percentage of 0.1-5% in order to create a formulation that provides optimal decontaminating results for a particular microorganism, bacteria or virus for a given environment based numerous variables such as humidity, temperature etc.; as such would be no more than a result effective variable that would be optimized by one of ordinary skill during routine experimentation. Only the expected results would be attained.
Therefore, claim 13 does not create a patentable distinction over Ho, and is thus rejected in view of Ho.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KEVIN C JOYNER whose telephone number is (571)272-2709. The examiner can normally be reached Monday-Friday 8:00AM-4:30PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, MICHAEL MARCHESCHI can be reached at (571) 272-1374. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KEVIN JOYNER/Primary Examiner, Art Unit 1799
Prosecution Insights