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 .
DETAILED ACTION
Response to amendments
The amendments made to the claims 06/12/2026 have been entered.
In view of the amendments made, the 101 and 102 rejections over canceled claims 1-3 are now moot and therefore withdrawn.
Withdrawn Rejections
The 112(a) scope of enablement rejection and the 112(b) indefinite rejection made in the prior office action have been withdrawn.
Maintained Rejections
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.
Claim(s) 4, 8, and 10-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Keele University (Doctoral Thesis of Oladele Abiodun Olaniran, published 2013, url=https://keele-repository.worktribe.com/output/404180, accessed 03/30/2026, herein after Keele) and Siebert (Journal of Cotton Science, 20:309-319, 2016) and as evidenced by Olaniran (J. Chem. Ecol. 2013, Vol. 39, 559-568, the record).
KSR Rationales
The MPEP in section 2143, subsection I gives examples of Rationales for supporting a conclusion of obvious. These rationales are non-exhaustive and include (A) Combining prior art elements according to known methods to yield predictable results; (B) Simple substitution of one known element for another to obtain predictable results; (C) Use of known technique to improve similar devices (methods, or products) in the same way; (D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results; (E) “Obvious to try” – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success; (F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art; (G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention.
Claim 4 is drawn to a kit composition comprising a contact pheromone and a pesticide wherein the contact pheromone 7-methyltricosane (7-TM) disrupts seclusion. The pesticide comprises either spinetoram or spinosad.
Claim 8 is drawn to a method of controlling thrips comprising spraying a mixture of a contact pheromone and a pesticide onto the thrips.
Claim 10 specifies that the thrip comprise Frankliniella occidentalis or Frankliniella intonsa.
Claim 11 specifies that the pesticide pf claim 8 is either spinetoram or Spinosad.
Claim 12 comprises concentrations of 7-methyltricosane and spinetoram.
Regarding claims 4, 8, and 10, Keele p. i, section Abstract which states “The chemical analysis of male-exposed filter paper discs showed the presence of another compound, 7-methyltricosane, which was shown to act as a contact pheromone for species recognition. Considering that the contact pheromone is one that directly affects Frankliniella occidentalis, it would be obvious to apply said pheromone in methods directed at the insect Frankliniella occidentalis.
Regarding the kit limitation of claim 4, the limitation” kit composition” is not defined in the instant specification. The instant specification only discusses a “kit composition” as the combination of the contact pheromone and pesticide. Therefore, the use of “kit” within “kit composition” does not sufficiently make the claim distinct from a simple composition combining the contact pheromone and pesticide, as made obvious by Keele (“where pheromone and insecticides are mixed together and sprayed”).
Regarding claims 4, 8, and 10, Keele on p. 12, para. 3 states “Spinosad, a biopesticide has been widely used in integrated pest management because of its novel activity against insects, short half-life, low toxicity to mammals, birds, fish and even to beneficial insect (citation omitted). It has been found to be effective in controlling F occidentalis (citations omitted).”
Regarding claim 11, Siebert in sec. Comparing Activity of Spinosad and Spinetoram Against Thrips in Cotton states “Mean numbers of thrips were significantly lower in plots treated with spinetoram…compared to the non-treated plots at both three and seven [days] after application. Numbers of thrips were also significantly lower in plots treated with spinetoram at both evaluation intervals compared to plots treated with Spinosad”. This teaching indicates that spinetoram is more effective against general thrips than Spinosad. Therefore, one of ordinary skill in the art would find it obvious to use spinetoram in place of Spinosad.
The art teaches that 7-methyltricosane, spinosad, and spinotetram are all effective against the claims thrips types. The MPEP section 2144.06 states:
“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) (citations omitted)
Therefore, it would be obvious to combine at least 7-methyltricosane and Spinosad or spinotetram. Additional motivation to combine the compounds is found in Keele.
Regarding claim 12, Olaniran on p. 4, sec. Bioassay of Contact Response to Synthetic Pheromone teaches that thrips responded to 200 pg of 7-methyltricosane. Siebert in its abstract states “These experiments demonstrate that spinetoram applied at 13.0 to 26.0 g a.i./ha has utility in the management of thrips infesting cotton seedlings.” Therefore, the art teaches effect amounts of application. While the art may not explicitly disclose a composition comprising 7-methyltricosane and Spinosad or spinotetram in the claimed concentrations, it would be within the skillset of one of ordinary skill to experiment with various compound amounts to arrive at the claimed concentrations.
Keele on p. 176-177, sec. 8.2 Future Directions states “Based on the roles of the pheromones in the laboratory, aggregation pheromones can be applied to get the thrips from their concealed position to open spaces whereby timely application of insecticides can be used. El-Sayed et al. (2006) suggests mass trapping has potential to suppress or eradicate isolated populations of invasive pests at low densities. The aggregation pheromone may be applied to traps in the field to attract both sexes thereby reducing the population of the thrips and consequently increase profitability. Another approach may be ‘attract and kill’ a situation where pheromone and insecticides are mixed together and sprayed directly to crop so that the thrips can come out of their hidden places and exposed to insecticides.”
Additionally, Olaniran in Table 3, shown below, shows that thrips of either sex spend more time around glass beads coated with 7-methyltricosane.
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Keele teaches that Spinosad is an effective pesticide against F. occidentalis. Olaniran and Keele also teach that 7-TM is a contact pheromone for F. occidentalis. Olaniran and Keele also teach the aggregation pheromone Neryl 2-methylbutanoate. Siebert teaches spinetoram is more effective than Spinosad. Keele then goes further and directly states that combining a pheromone with a pesticide would be an effective method for controlling insect populations. Keele also states that this method has been suggested within the art. It would also be obvious to one of ordinary skill in the art to combine the aggregation pheromone with the contact pheromone and pesticide combination as the aggregation pheromone directly affects the thrips.
Therefore, it would have been prima facie obvious at the time of the effective filing date for one ordinary skill in the art to have combined the contact pheromone 7-methyltricosane with the pesticide Spinosad or spinetoram to create a composition for controlling thrip populations and into a method for controlling thrip populations. One of ordinary skill in the art would find motivation in the statement of Keele, above, which includes population control and increased profitability.
Response to Arguments
Applicant’s arguments submitted in the remarks of 06/12/2026 have been considered but are not persuasive.
Applicant is correct in that 7-methyltricosane is a contact pheromone and the compound that induces thrips to aggregate is neryl 2-methylbutanonate. Indeed, Olaniran on p. 6, sec. Bioassay of Distance Response to Synthetic Pheromone states “A positive control experiment, comparing the known aggregation pheromone, neryl (S)-2-methylbutanoate, with a hexane-only control, showed a clear positive distance response to this compound in adult females…and males…This demonstrated that the bioassay was capable of testing for responses of thrips over a distance. The same bioassay showed no response to 7-methyltricosane when it was compared against a hexane-only control for adult females… and males....There was no indication that thrips detected 7-methyltricosane from a distance of about 20mm at a dose (200 pg) similar to that found on individual males.” Therefore, the claim limitations “wherein the 7-methyltricosane disrupts a seclusion behavior…” cannot be claimed as the 7-methyltricosane does not have the property of attracting thrips.
Applicant argues that Keele and Olaniran teach away from the claimed composition and states “7-methyltricosane acts only upon contact, does not attract thrips at a distance, and tends to make adult females remain near the source…”. This argument similarly applies to the instant claims. If 7-methyltricosane does not function as an aggregation pheromone, then the claims cannot be drawn to a composition where the 7-methyltricosane suddenly has the property. See 112(a) written description rejection below.
However, excluding the limitation above, one of ordinary skill would still find it obvious to combined the 7-methyltricosane with either spinotetram or spinosad for reasons discussed in the 103 rejection above.
Applicant also argues that the claimed combination “yields unexpected results.” Applicant points to Table 1 of the specification and states that spinetoram “produced a control value of 76.2% for total thrips, whereas treatment with the 7-methyltricosane and spinetoram mixture produced a control value of 86.7%, and 7-methyl tricosane alone produced a control value of only 12.4%. The marked increase in control efficacy obtained by adding 7-methyltricosane to the pesticide is a synergistic and unexpected result that the cited references neither disclose nor render predictable.”
The improvement is noted. However, the examiner does not find this argument persuasive. Synergistic combinations are mathematically deduced and/or via the following formulas (Soller, Crop Protection, 42, 2012, 180-185).
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Applicant has not shown these calculations so it has not been determined if the improved results are because an actual synergistic effect or the improvement is an additive effect that one of ordinary skill in the art would be able to deduce via teachings within the art. Additionally, the 7-methyltricosane is not a pesticide. A calculation showing synergy may not be applicable as the calculation would require two pesticides.
Considering that the art teaches that 7-methyltricosane induces thrips to stay within the area where applied, one of ordinary skill would be able to infer that increased exposure time to a pesticide would lead to a higher kill rate and/or control value.
New Rejections
Claim Rejections - 35 USC § 112(a)
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 4, 8, and 10-12 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.
Applicant has amended the claims to include the following limitations:
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.
As discussed above and as argued by applicant, 7-methyltricosane is not an aggregation pheromone. Therefore, it cannot be used to “induce an adult female of the thrips to move toward” an area or even to 7-methyltricosane itself. Olaniran on p. 7, left col., para 1 states “males and females spent more time close to a bead dummy coated with [7-methyltricosane] after they contacted it.” The art teaches that the claimed invention cannot work as claimed.
As claims 10-12 are dependent on claim 8, they are also rejected.
This new rejection is necessitated as applicant has introduced this new limitation via amendments made to the claims.
Conclusion
No claims allowed.
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.
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/L.G./Examiner, Art Unit 1624
/JEFFREY H MURRAY/Supervisory Patent Examiner, Art Unit 1624
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