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
Claims 1-6 as filed March 9, 2024 are under consideration.
Specification
The disclosure is objected to because of the following informalities: the “[0006]” in paragraph [0007] should be deleted. Appropriate correction is required.
The use of terms such as Cuproxat SC (e.g., paragraphs [0012], [0025]), which is a trade name or a mark used in commerce, has been noted in this application. These terms should be accompanied by the generic terminology; furthermore these terms should be capitalized wherever they appear or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Objections
Claims 1 and 3-6 are objected to because of the following informalities:
Claim 1 properly recites “A method” rather than “The method”.
Claim 1: the first word of the clauses should not be capitalized, e.g., “Crushed” should recite “crushed”.
Claim 3 properly recites “A composition” rather than “Composition”.
Claim 3: “claim1” properly recites “claim 1”.
Claim 4 properly recites “A composition” rather than “The composition”.
Claim 4: “an adhesive” should presumably recite “the adhesive” to reference the antecedent in claim 1.
Claim 5 properly recites “A composition” rather than “The composition”.
Claim 5: “the following microelements” should presumably recite “the following useful microelements” to reference the antecedent in claim 1. However, see also rejection under 35 USC 112(b) regarding the term useful.
Claim 6: “200-800L” should “recite 200-800 L”.
Appropriate correction is required.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 3 and 5 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claim(s) 3 recite(s) a nature-based composition comprising a paste in the form of a highly concentrated aqueous suspension of basic copper carbonate. Basic copper carbonate occurs in nature as evidenced by Wikipedia and is insoluble in water (copy provided).
Claim(s) 5 recite(s) a nature-based composition comprising a paste in the form of a highly concentrated aqueous suspension of basic copper carbonate further comprising circumscribed amounts of cobalt, manganese, magnesium, iron and zinc.
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. See MPEP 2113. This judicial exception is not integrated into a practical application because the claims at broadest recite combinations of natural products and there is no evidence of record that the combinations possess any new structural or functional properties, e.g., that the claimed combination is more than the sum of its parts or is markedly different than what is found in nature.
Claim 4 is not included in this rejection because there is no evidence suggesting silica hydrogel is a product of nature and there is evidence that the addition of this component to the composition would result in a “markedly different” composition.
The rationale for this determination is explained below: as per the Patent Subject Matter Eligibility Guidance and MPEP 2106.04(b)-(c), nature-based products that (i) are naturally occurring or (ii) are not naturally occurring but have characteristics that are not markedly different from a naturally occurring counterpart fall within an exception (law of nature or natural phenomena). Compositions, or combinations of naturally occurring nature-based products, are not patent eligible even if the combination itself is not naturally occurring absent the presence of markedly different characteristics in structure, function and/or other properties. Non-limiting examples of markedly different characteristics include biological or pharmacological functions or activities; chemical and physical properties; phenotype; and structure and form. This conclusion finds support in Funk Brothers Seed Co. v Kalo Inoculant Co., 33 U.S. 127, 131 (1948) and is re-iterated in Myriad, 133 S.Ct. at 2117 which states that “the composition was not patent eligible because the patent holder did not alter the bacteria in any way." See also Example 30 of the Life Sciences Examples of May 6, 2016 in which man-made mixtures/combinations of natural products present in prescribed amounts/ranges are deemed ineligible under the “product of nature" exception in view of Funk Brothers and in view of Myriad.
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 1-6 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.
Claim 1 recites “The method”. There is insufficient antecedent basis for this limitation in the claim. Claim 1 properly recites “A method”. Claims 2-5 are included in this rejection because they depend from claim 1.
Claim 1 recites in the second clause “the required solution concentration”. It is unclear what is meant by the required concentration and the specification (e.g., paragraph [0024]) fails to remedy the ambiguity. Claims 2-5 are included in this rejection because they depend from claim 1.
Claim 1 recites in the fourth clause “squeezing the sediment to a humidity of 30-50%”. There is insufficient antecedent basis for the sediment in the claim. For purposes of applying prior art, it is presumed that the sediment references the precipitate of the third clause. It also unclear what is meant by a humidity of 30-50% and the specification (e.g., paragraph [0024]) fails to remedy the ambiguity. For purposes of applying prior art, it is presumed that the humidity is the water content of the precipitate in units of w/w as set forth in claim 3. Claims 2-5 are included in this rejection because they depend from claim 1.
Claim 1 recites in the fourth clause “a ready-made fungicide is obtained in the form of a paste, which contains adhesive and useful microelements”. While the specification at paragraph [0019] discloses silica hydrogel adhesive is formed during the precipitation process and paragraph [0016] discloses ores may comprise silica, it is unclear how the method as claimed produces silica hydrogel (or any other adhesive) because the inputs (e.g., oxidized copper ore, hydrochloric acid, sodium carbonate) need not comprise silica or silicon. Claims 2-5 are included in this rejection because they depend from claim 1. And while the specification at paragraph [0019] discloses microelements, these microelements are merely exemplary of useful microelements and it is unclear what other microelements might also be deemed useful. Useful is a subjective term and is indefinite. See MPEP 2173.05(b) IV. Claims 2-5 are included in this rejection because they depend from claim 1.
Claim 2 recites the starting material is copper-containing waste products from the copper mining industry, however, claim 1 recites crushed oxidized copper ore. Because claim 2 appears to be drawn to a different copper starting material than claim 1, it is unclear what copper material is claimed. Claims 4 and 5 are included in this rejection because they depend from claim 2.
Claim 3 recites information within parentheses. It is unclear whether this information is merely exemplary or whether this information is required by the claim. For purposes of applying prior art the parenthetical information is presumed to be exemplary.
Claim 4 recites information within parentheses. It is unclear whether this information is merely exemplary or whether this information is required by the claim. For purposes of applying prior art the parenthetical information is presumed to be exemplary.
Claim 5 recites information within parentheses. It is unclear whether this information is merely exemplary or whether this information is required by the claim. For purposes of applying prior art the parenthetical information is presumed to be exemplary.
Claim 6 recites contacting a plant with a fungicide solution … applied to 1 hectare of vineyard or garden. The claim seems to be drawn to two different embodiments, the first being drawn to application to a plant and the second being drawn to application to a hectare (which need not comprise the plant). Because it is unclear what process is claimed, claim 6 is indefinite.
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 3, 5 and 6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Anatoliovych (UA 30246 U, published February 25, 2008, as evidenced by the Google translation) as evidenced by Wikipedia “Basic copper carbonate,” last edited February 19, 2026.
Regarding claim 3
Anatoliovych teaches a fungicide comprising an aqueous solution of basic copper carbonate (water insoluble as evidenced by Wikipedia) with a content of copper ions of 25 to 35 wt% (highly concentrated suspension, paste) and micronutrients (title; abstract; claims).
Regarding the product-by-process limitation of a paste prepared by the method of claim 1, product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. See MPEP 2113. Because Anatoliovych in in possession of a suspension of basic copper carbonate, the suspension of Anatoliovych is a paste and Anatoliovych meets the claim. Additionally, Anatoliovych teaches the fungicide is prepared by pouring crushed copper ore concentrate with a solution of hydrochloric acid, metals are leached, the solution is separated from the sludge, and the basic copper carbonate is precipitated from the solution using soda (sodium carbonate) (page 2).
Regarding claim 5
Anatoliovych teaches a fungicide comprising an aqueous solution of basic copper carbonate (water insoluble as evidenced by Wikipedia) with a content of copper ions of 25 to 35 wt% (highly concentrated suspension, paste) and micronutrients (microelements) inclusive of cobalt 0.1-0.3 wt%, manganese 0.1-0.3 wt%, magnesium 0.1-0.9 wt%, iron 0.03-0.05 wt%, and zinc 0.01 wt% (title; abstract; claims).
Regarding the product-by-process limitation of a paste prepared by the method of claims 1 or 2, product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. See MPEP 2113. Because Anatoliovych in in possession of a suspension of basic copper carbonate and micronutrients inclusive of cobalt 0.1-0.3 wt%, manganese 0.1-0.3 wt%, magnesium 0.1-0.9 wt%, iron 0.03-0.05 wt%, and zinc 0.01 wt%, the suspension of Anatoliovych is a paste and Anatoliovych meets the claim. Additionally, Anatoliovych teaches the fungicide is prepared by pouring crushed copper ore concentrate with a solution of hydrochloric acid, metals are leached, the solution is separated from the sludge, and the basic copper carbonate is precipitated from the solution using soda (sodium carbonate) (page 2).
Regarding claim 6
Anatoliovych teaches a fungicide comprising an aqueous solution of basic copper carbonate (water insoluble as evidenced by Wikipedia) with a content of copper ions of 25 to 35 wt% (highly concentrated suspension, paste) and micronutrients (title; abstract; claims). Anatoliovych teaches adding 3-5 kg of the fungicide to water with a working solution per hectare of vineyard or garden from 200 to 800 L (application of the fungicide to the plants within the vineyard or garden is implicit) (page 2).
The above teachings therefore anticipate the claims.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 3-6 are rejected under 35 U.S.C. 103 as being unpatentable over Anatoliovych (UA 30246 U, published February 25, 2008, as evidenced by the Google translation) as evidenced by Wikipedia “Basic copper carbonate,” last edited February 19, 2026 in view of Soanes et al. (US 1,523,444, published January 20, 1925) and Murakami et al. (US 8,623,782, published January 7, 2014).
The teachings of Anatoliovych have been described supra with regard to the anticipation of claims 3, 5 and 6.
Anatoliovych teaches the fungicide is prepared by pouring crushed copper ore concentrate with a solution of hydrochloric acid, metals are leached (to some required concentration), the solution is separated from the sludge, and the basic copper carbonate is precipitated from the solution using soda (sodium carbonate) (page 2).
Anatoliovych further teaches the balance of the composition comprises water (implies the water is present in amounts of about 100 – (25 to 35 wt%) ~= 75 to 65 wt% presuming the copper ion content of Anatoliovych references the total content of the basic copper carbonate or about 50 to 25 wt% presuming the copper ion content of Anatoliovych references the copper content of the basic copper carbonate and estimating the copper content as about half the total MW of the basic copper carbonate) (claims).
Anatoliovych does not specifically teach crushed oxidized copper ore, does not teach washing on a filter press and squeezing the sediment to a humidity of 30 to 50 %, and does not specifically teach an adhesive as required by claim 1.
Anatoliovych does not teach 3 to 5 wt% silica hydrogel as required by claim 4.
These deficiencies are made up for in the teachings of Soanes and Murakami.
Soanes teaches a process for the extraction of copper from its ores (title). Ores include oxides ores, in which the copper is contained for example as oxide, carbonate or silicate (page 1, lines 18-28). Soanes further teaches crushed dry oxides ores of copper (page 1, lines 29-35). Soanes further teaches oxidized copper ore from a mine which is subsequently crushed (page 1, Example 1). Soane further teaches washing of the product (pages 1-2, Example 2).
Murakami teaches a process for preparing a copper-based catalyst comprising the steps of (1) bringing an acidic metal salt solution container copper and a precipitant into contact to obtain a slurry and (2) a step of bringing the slurry solution and a wash liquid into contact to wash the precipitate in suspended state (title; abstract; claims). Washing is carried out in order to remove the alkali metal of the precipitant component (column 7, lines 52-62). The washed slurry can be concentrated to the form of a cake (paste) by subjecting to pressure filtration (squeezing) with for example a filter press (column 10, lines 4-12). The resulting cake may be dried to a water content of 8 to 17% (implies the water content before drying is greater than 17%) (column 11, lines 6-57).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the crushed copper ore reactant of the fungicide preparation method of Anatoliovych to comprise crushed oxidized copper or from a mine as taught by Soanes because a mine is an art recognized source of copper ore.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the fungicide preparation method of Anatoliovych in view of Soanes to further comprise step of washing the basic copper carbonate precipitate solution as taught by Murakami in order to remove residual soda precipitant and to further comprise the step of concentrating the washed slurry to the form a of a cake (paste) by subjecting to pressure filtration (squeezing) with for example a filter press as taught by Murakami in order to recover the basic copper carbonate precipitate product.
It would have been obvious to one of ordinary skill in the art that the concentrate the washed slurry of Anatoliovych in view of Soanes and Murakami to a water content greater than 17% as taught by Murakami or/and to a water content of about 50 to 25 wt% as taught by Anatoliovych because this water content is suitable for the fungicide compositions of Anatoliovych. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). 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). See MPEP 2144.05.
Regarding the adhesive of claim 1 and the 3 to 5 wt% silica hydrogel adhesive of claim 4, because the combined teachings of the prior art render obvious the process of claim 1, it necessarily follows that the product produced must be the same as instantly claimed. In further support of this presumption, the instant specification at paragraphs [0016] and [0019] evidences copper ore comprises silicone oxide which precipitates as a silica hydrogel in a concentration of 3 to 5 wt%.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Anatoliovych (UA 30246 U, published February 25, 2008, as evidenced by the Google translation) as evidenced by Wikipedia “Basic copper carbonate,” last edited February 19, 2026 in view of Soanes et al. (US 1,523,444, published January 20, 1925) and Murakami et al. (US 8,623,782, published January 7, 2014) as applied to claims 1 and 3-6 above, and further in view of Wyrsta (US 11,427,487, published August 30, 2022).
The teachings of Anatoliovych, Soanes and Murakami have been described supra.
They do not teach copper-containing waste products from the copper mining industry as required by claim 2.
This deficiency is made up for in the teachings of Wyrsta.
Wyrsta teaches methods for treating waste water produced by copper mining operations; waste can be utilized as a source of valuable metals (title; abstract; claims; Figure 1; columns 1-2, Background describing copper mining and waste products thereof).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify crushed copper ore reactant of the fungicide preparation method of Anatoliovych in view of Soanes and Murakami to further comprise waste produced by copper mining operations as taught by Wyrsta in order to recover as much copper as possible.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Anatoliovych (UA 30246 U, published February 25, 2008, as evidenced by the Google translation) as evidenced by Wikipedia “Basic copper carbonate,” last edited February 19, 2026 in view of Hedges et al. (US 3,917,814, published November 4, 1975).
Anatoliovych is applied herewith under a different interpretation of claim 4 in the interest of compact prosecution
The teachings of Anatoliovych have been described supra with regard to the anticipation of claims 3, 5 and 6.
Anatoliovych further teaches the balance of the composition comprises water (implies the water is present in amounts of about 100 – (25 to 35 wt%) ~= 75 to 65 wt% presuming the copper ion content of Anatoliovych references the total content of the basic copper carbonate or about 50 to 25 wt% presuming the copper ion content of Anatoliovych references the copper content of the basic copper carbonate and estimating the copper content as about half the total MW) (claims).
Anatoliovych does not teach 3 to 5 wt% silica hydrogel as required by claim 4. Regarding the product-by-process limitation of a paste prepared by the method of claims 1 or 2, product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. See MPEP 2113. Because Anatoliovych in in possession of a suspension of basic copper carbonate, the suspension of Anatoliovych is a paste and Anatoliovych meets the claim.
This deficiency is made up for in the teachings of Hedges.
Hedges teaches an insecticidal composition comprising inorganic particles having sorptive silica gel adhered to the surface thereof, the silica gel constituting at least about 0.1 wt% or about 0.1 to 10 wt% of the particles (title; abstract; claims). The sorptive silica gel is a silica hydrogel (claim 6). Sorptive dusts adhere to naturally occurring objects including plants and animals (column 2, lines 1-13; column 4, lines 38-58).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the basic copper carbonate and micronutrients of Anatoliovych to further comprise silica gel inclusive of silica hydrogel as taught by Hedges in order to improve adherence to naturally occurring objects including plants. It would have been obvious to include the silica hydrogel in an amount of at least about 0.1 wt% of the content of the basic copper carbonate with a content of copper ions of 25 to 35 wt%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). 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). See MPEP 2144.05.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Gottfried et al. (US 4,659,555) teaches a process for the preparation of basic copper carbonate comprising reacting copper salts with alkali carbonate in aqueous solution (title; abstract; claims).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALISSA PROSSER whose telephone number is (571)272-5164. The examiner can normally be reached M - Th, 10 am - 6 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, DAVID BLANCHARD can be reached on (571)272-0827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALISSA PROSSER/
Examiner, Art Unit 1619
/BENNETT M CELSA/Primary Examiner, Art Unit 1600