DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Claims
Claims 3, 6-7 and 11-19 are pending in the present application.
Withdrawn Rejections
Rejections and/or objections not reiterated from the previous Office Action are hereby withdrawn.
Response to Arguments
Applicant’s arguments with respect to claims 1-3, 5-7 and 11-13 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Specification
The amendment filed 24 March 2026 is objected to under 35 U.S.C. 132(a) because it introduces new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The added material which is not supported by the original disclosure is as follows: the amendment to the paragraphs on pg. 2, ln. 1 and 7, and the table on pg. 12, ln. 13, to change the preferred range of water (7.48 to 31.63%) and the more preferred range of water (11.52 to 27.6%) are outside the scope of the ranges previously disclosed. Applicant stated in the Remarks filed 24 March 2026 that the specification is revised to correct the error noted by the Examiner in the compositional ranges for the preferred and more preferred ranges… The error was in the miscalculation of the remaining water. With the expanded ranges of 15 and 10% on either side of the target percentage, the water contents originally disclosed are erroneous and now corrected.
The examiner respectfully argues that it is not clear from the specification as originally filed that the preferred and more preferred ranges of water are included to 100% for the composition, as opposed to 10% and 15% on either side of the target concentration, which is how the preferred and more preferred concentration of water were originally calculated. Therefore, the concentration ranges for the preferred and more preferred ranges of water are not supported in the specification and claims as originally filed.
Also, Applicant states to amend the paragraph starting on pg. 13, ln. 1. However, pg. 13, ln. 1 begins with a table listing insects. It is believed that Applicant intended to amend the paragraph beginning on pg. 14, ln. 1. The table inserted by the amendment contains concentration ranges that are not supported by the original specification or claims. The table contains upper limit concentrations in the preferred range for glycerin (69.92%), surfactant (10.81%), 2-propanol (9.09%), and lemon grass oil (1.78%) that are outside the scope of the concentration ranges previously provided. Also, the table contains concentrations for water in the preferred range (7.78 and 31.84%) and more preferred ranges (11.81 and 28.02%) that are outside the scope previously recited.
Applicant states in the Remarks that the table is replicated with corrected values to reflect the removal of the neem oil from the composition.
The examiner respectfully argues that the specification states, “If the effects of the neem oil are not needed for a particular application, the neem oil could be removed from the formulation and the concentration of the target composition and its variance in terms of the 10% and 15% spreads adjusted accordingly.” It is not clear from the specification that the target composition concentrations increase for every component as opposed to the concentration of water or the lemon grass and thyme oils increase to adjust for the absence of neem oil. Therefore, the concentration ranges of the composition without neem oil are not supported by the specification and/or claims as originally filed.
Applicant is required to cancel the new matter in the reply to this Office Action.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 3, 6-7, 11-15 and 17-18 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Instant claims 14 and 17 recite percentages for the plant-based glycerin (69.92%), surfactant (10.81%), 2-propanol (9.09%), lemon grass oil (1.78%) and water (7.78 and 31.84%) that are not supported by the specification or claims as originally filed. Claims 15 and 18 recite concentrations of water (11.81 and 28.02%) that are not supported by the specification or claims as originally filed.
Dependent claims 3, 6-7 and 11-13 also include the concentrations recited in claim 14 and do not further limit the concentrations to amounts that are supported by the specification or claims as originally filed.
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 11 is 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.
Claim 11 recites “1) when the formulation is used as pest/fungi control agent, it can be broadcast at a rate of about 7-9 ounces per acre”. The term “can be” means that the concentration and application method are optional. The claim does not positively recite that when the formulation is used as pest/fungi control agent, it is broadcast at the rate claimed. Therefore, the optional step 1 does not have a positively recited active step.
Claim 11 also recites “2) when the formulation is to be used to treat stink bugs and stink bug larvae, the formulation can be diluted to 5-70 and then sprayed in areas containing the stink bugs and the stink bug larvae”. As noted above, the term “can be” is not an active step. Further, it is unclear what is meant by “diluted to 5-70”. Is the formulation diluted 5-70 times, diluted to 5-70 gallons, diluted to 5-70 ounces per gallon of water, etc.? It is noted that claim 6 does not recite any concentration range for the formulation so it is unclear what the starting concentration and the diluted concentration are. Also, the method recites spraying an undisclosed amount of the formulation with an undisclosed concentration. Therefore, it is unclear how much of the claimed formulation is applied to the area comprising stink bugs or stink bug larvae, and it is thus unclear how to perform the claimed method.
Claim 11 also recites “3) when the formulation is to be used to treat crops suffering from pest damage, the formulation can be applied to the crops in a concentration of about 10-30 ounces”. As noted above, the term “can be” is not an active step. Further, the method step states applying about 10-30 ounces of the formulation, but it does not state if that volume is applied per acre, or if that volume is diluted in a specific volume of water and then a set volume of the diluted composition is applied per acre. Therefore, it is unclear how much of the claimed formulation is being applied to the crops.
Claim 11 also recites “4) when the formulation is to be used as a maintenance treatment on crops, the formulation can be applied to the crops in a concentration of about 10-30 ounces per 3-7 gallons of water”. As noted above, the term “can be” is not an active step. Further, it is not clear how much of the diluted formulation is applied to an acre of crops, or any other size of crops. Therefore, it is unclear how to perform the claimed method step for a maintenance treatment on crops.
Claim 11 also recites “5) when the formulation is to be used to treat mosquitoes and/or mosquito larvae, the formulation can be applied in areas containing the mosquitoes and/or mosquito larvae in a concentration of about 10-30 ounces per 1-3 gallons of water”. As noted above, the term “can be” is not an active step. Further, it is not clear how much of the diluted formulation is applied to a specific area containing mosquitoes and/or mosquito larvae. For instance, it is not clear if 1 gallon of the diluted formulation is applied per km2, etc. Therefore, it is unclear how to perform the claimed method step for treating mosquitoes and/or mosquito larvae.
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.
Claims 3, 6-7 and 11-19 are rejected under 35 U.S.C. 103 as being unpatentable over Bissinger et al. (US 2016/0165899 A1).
Regarding instant claims 14-19, Bissinger et al. teach throughout compositions and methods for controlling arthropods comprising one or more plant essential oils. Bissinger et al. teach that one advantage is that composition can be produced containing only ingredients exempt from EPA registration by virtue of their appearance on the FIFRA 25(b) list or Class 4(a) inert ingredient list making the composition completely safe for use, and potentially eligible for classification as an organic pest control agent ([0012], [0032], [0040]). The essential oils include thyme oil and lemon grass oil as well as extracts thereof ([0042]-[0043], [0117]-[0118]; Table 1). Bissinger et al. teach that the compositions may further comprise vegetable glycerin, fatty acids and/or salts, surfactants, isopropyl alcohol, and water, wherein the fatty acids and/or salts include potassium salts of coconut oil, and the surfactants include sodium lauryl sulfate ([0055]-[0059], [0069], [0075], [0077], [0083], [0088], [0093]-[0097], [0118]; Tables 1, 5-6, 8-10; Claims 5, 12-15). Bissinger et al. teach that the fatty acids and/or salts are suitably present in ranges from 3 to 50% by weight, based on the total amount of the composition ([0059]). Bissinger et al. teach that the final concentration of the surfactant in the formulation may be about 1-10%, the final concentration of the solvent may be 0 to about 80% ([0097]).
Bissinger et al. do not explicitly disclose an exemplary formulation comprising thyme oil combined with lemon grass oil, as instantly claimed. However, Bissinger et al. teach that the compositions can comprise one or more plant essential oils, wherein the plant essential oils comprise thyme oil and lemon grass oil ([0032], [0040], [0042], [0117]-[0118]).
It would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare formulations according to Bissinger et al. comprising a combination of plant essential oils. A person of ordinary skill in the art would have been motivated to select plant essential oils taught by Bissinger et al., such as thyme oil and lemon grass oil, that are GRAS and known to be effective for the control of arthropods. Further, it would have been prima facie obvious for a person of ordinary skill in the art to include vegetable glycerin, a surfactant, 2-propanol and water, as reasonably taught by Bissinger et al.
Regarding the concentrations, Bissinger et al. teach that the formulations are effective for the control of arthropods, and may be applied as a spray formulation. A person of ordinary skill in the art would have included the plant essential oils in an amount that is effective for the control of arthropods, and the additional components in amounts that are suitable for preparation of a spray mixture comprising the plant essential oils, surfactant, carrier, solvent and water.
Regarding claim 3, Bissinger et al. teach that the formulation may comprise a fatty acid and/or salt thereof, including potassium salts of coconut oil ([0055]-[0056], [0069]); and the surfactants include sodium lauryl sulfate ([0083], [0093], [0095], [0097], [0119]; Claims 12-13, 15).
Regarding claims 6-7 and 11-13, Bissinger et al. teach that the compositions and methods can be used to control any type of arthropod, including mosquitoes ([0002]-[0004], [0013]-[0028], [0031]; Claims 17-19). Bissinger et al. teach treating a host directly, or treating an area in which the host will be located ([0038], [0098], [0103]-[0105]). Bissinger et al. also teach that the compositions can be formulated as a spray, cold mist or warm mist ([0095], [0098]-[0099], [0104]).
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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nathan W Schlientz whose telephone number is (571)272-9924. The examiner can normally be reached 10:00 AM to 6:00 PM, Monday through Friday.
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, Sue Liu can be reached on (571) 272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/N.W.S/ Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616
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