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 .
Election/Restrictions
Applicant's election with traverse of Group I, claims 1 and 2 in the reply filed on 03/26/2026 is acknowledged. The traversal is on the ground(s) that the shared technical features meets the criteria for special technical feature under PCT rule 13.1 and 13.2 because Zahn does not teach 84-disinfectant and because the claimed combination of copper sulfate pentahydrate and 84-disinfectant forms a complex and the mixture exhibits synergistic efficacy against bacterial leaf streak. This is not found persuasive in view of the prior art cited in the obviousness rejection. As explained in the rejection under 35 USC §103 below, antimicrobial synergy between copper sulfate and sodium hypochlorite (84-disinfectant) was known as of the time the instant invention was filed and it would have been obvious to include dodecyl dimethyl benzyl ammonium bromide (see below).
The requirement is still deemed proper and is therefore made FINAL.
Claims 3-7, 9 and 10 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 03/26/2026.
Claims 1 and 2 are under current examination.
Claim Objections
Claims 1 and 2 are objected to because of the following informalities:
The examiner recommends amending both of claims 1 and 2 to recite “percent” instead of “parts” in each instance following the amount of each ingredient in the claimed composition for consistency of claim language.
There is an extra space between “84-disinfectant and the comma that follows in claim 2 line 4.
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.
Claims 1 and 2 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.
Claims 1 and 2 both contain the trademark/trade name 84-disinfectant. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe a solution of sodium hypochlorite and, accordingly, the identification/description is indefinite.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
Claims 1 and 2 are rejected under 35 U.S.C. 103 as being unpatentable over Dautreuil et al. (US20170280728; publication date: 10/05/2017) in view of Davies et al (US2987435; issue date: 06/06/1961) and further in view of Sharma et al (US20190350200; publication date: 11/21/2019; of record) and Wang (CN 110402957; publication date: 11/05/2019; English abstract only).
With regard to claims 1 and 2, Dautreuil discloses an antimicrobial composition comprising a hypochlorite salt and a copper(II) salt (abstract). An example composition contains copper (II) sulfate pentahydrate and sodium hypochlorite (0043, 0054). The combination of ingredients results in synergistic antimicrobial effect (0047).
Dautreuil does not disclose including dodecyl dimethyl benzyl ammonium bromide in the composition.
Davies teaches that hypochlorite solution in combination with quaternary ammonium salts show antimicrobial synergy (col 1, lines 27-32; col 2, lines 31-4). Specifically, Davies teaches a synergistic example comprising benzyl dimethyl alkylammonium chloride and sodium hypochlorite aqueous solution (example 1).
It would have been prima facie obvious to combine Dautreuil’s antimicrobial composition containing copper(II)sulfate pentahydrate and sodium hypochlorite with one of the quaternary ammonium compounds taught by Davies. The skilled artisan would have been motivated to do so to further enhance antimicrobial potency such that even lower amounts of each agent could be employed and had reasonable expectation of success because combinations of two of the actives had been demonstrated in the art to show synergistic germicidal benefit.
With regard to the limitation “84-disinfectant” recited in the instant claims, the examiner notes that this term is a trade name referring to an aqueous solution of sodium hypochlorite, as discussed in the indefiniteness rejection above. Davies teaches that the hypochlorite solution may be aqueous solutions of sodium hypochlorite and that commercial hypochlorite bleaching solutions are suitable (col 1, lines 45-50). Wang teaches that the term “84-disinfectant” refers to an aqueous disinfectant solution comprising mainly sodium hypochlorite (abstract). It would have been prima facie obvious to use 84-disinfectant as the source of sodium hypochlorite aqueous solution because one having ordinary skill would have recognized this as a suitable source for Davies’ sodium hypochlorite (see MPEP 2144.07).
With regard to the limitation requiring “dodecyl dimethyl benzyl ammonium bromide”, as noted above, Davies discloses benzyl dimethyl alkylammonium chloride in an example composition. Davies teaches that any quaternary ammonium salt having substantial germicidal activity can be used including various bromide salts; however, Davies does not teach the bromide salt of dodecyl dimethyl benzyl ammonium cation. Sharma teaches that dodecyl dimethyl benzyl ammonium bromide was a quaternary ammonium salt known to have antimicrobial properties as of the instant effective filing date (0003). It would have been prima facie obvious to use dodecyl dimethyl benzyl ammonium bromide as the quaternary ammonium salt in Davies’ invention because it was known to serve the purpose as of the instant effective filing date (see MPEP 2144.06).
With regard to the amount of each active agent in the composition, both prior art references teach synergy between copper and either sodium hypochlorite or an antimicrobial quaternary ammonium salt and teach methods to assess germicidal efficacy. It would have been merely a matter of routine to determine optimal working concentrations of each active to arrive at a synergistic combination of the three antimicrobial ingredients. Moreover, Davies teaches formation of concentrated solutions that can be diluted prior to use (paragraph bridging col 1-2). It would have been obvious to concentrate the solution for convenience during storage and handling. For these reasons, the examiner does not consider the limitations on amounts of ingredients in the claimed composition to patentably define over the cited prior art. See 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
No claims are allowed.
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/KATHERINE PEEBLES/Primary Examiner, Art Unit 1617