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 .
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. The priority date is April 25, 2023.
Claims 1-15 are pending and currently under examination.
Claim Objections
Claims 6-9, and 14-15, are objected to because of the following informalities:
Claims 6-9 and 14-15, recite “pH2 and pH6”, which is a typographical format. Suggest, pH 2 and pH 6.
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 1-15 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing particularly point out and distinctly claiming 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.
In instant claims 1, 3-4, 10-11, the formulation comprising “non-active host fluid” is unclear. The word non-active host fluid is not described in specification to understand what is being claimed? It is unclear what is non-active host fluid? Clarifications are requested.
In instant claims 6-9, and 14 - 15, the term “approximately”’ is a relative term which renders the claim indefinite. The term “approximately” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The term “approximately” is indefinite also because it is unclear whether the limitation(s) following the term are part of the claimed invention.
All other claims depend directly or indirectly from the rejected claims and are, therefore, also rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), second paragraph, for the reasons set forth above.
Claim Rejections - 35 USC § 102
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 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, 10, and 13 are rejected under 35 U.S.C. 102(a)1 as being anticipated by HOTERENI DWAYNE WERAROA (AU 2020102390 A4).
In instant claims 1-3, and 10 recite formulation for chemically degrading webs by web producing species and for repelling such species comprising an organic acid, a surfactant, and non-active host fluid, Hotereni ‘390 teaches, method and device for repelling spiders and reducing or preventing the incidence of spider webs (Technical field [para. 0001]); In a further example, the composition comprises water, mint essential oil, an acetic acid source and a surfactant (Composition [para. 0044])”.
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). “When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir.1990). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product. In re Best, 562 F.2d at 1255, 195 USPQ at 433.
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.
Claims 4-9, 11, 13, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Hotereni Diwayne Weraroa (AU 2020102390 A4) in view of Rescota Regina D, et. al. (KR 19990067334 A) and Meier Frank (WO 2014095514 A1).
In instant claims 45 and11 recite formulation for chemically degrading webs by web producing species and for repelling such species comprising an organic acid, a surfactant, a non-active host fluid, and an emulsifier and essential oil. Hotereni ‘390, teaches, “a composition for repelling small animals, such as web-forming invertebrates, insects and spiders, or for reducing or preventing the residence of web-forming invertebrates, (composition [para 0019])”; “the composition preferably further includes a surfactant. The surfactant is preferably suitable to solubilize the essential oils in the solvent. The surfactant is alternatively suitable to improve the ability for the essential oils to disperse in the solvent when the composition is agitated, (composition [para 0034]); The essential oil in this example comprises a combination of mint essential oil and citronella essential oil. More preferably, the essential oil comprises a combination of peppermint essential oil and citronella essential oil. Preferably, the essential oil comprises substantially equal parts mint essential oil and citronella essential oil, ((composition [para 0040]), (as recited in claims 4and 11).
Although Hoterini ‘390, does not explicitly teach citric acid, however, reference does teach, “composition including between about 43 and 45 parts water; between about 1.2 and 2.5 parts acetic acid; between about 0.4 and 1.2 parts surfactant; and about 3 parts peppermint essential oil (composition [para. 0056]). Furthermore, Recosta et. al. ‘334, teaches “preferred water soluble pesticides are emamectins, or salts formed with agriculturally acceptable salts such as benzoic acid, salicylic acid, gallic acid, benzenesulfonic acid, hydrochloric acid and citric acid; (Description of embodiments [para. 0028]), and Emulsifiable, concentrated pesticidal formulations for use in agriculture are well known in the art. These formulations generally contain emulsifiers (Background art [para. 0001])”. Furthermore, Meier et. al. ‘541 teaches, "The cleaning composition according to the invention can contain one or more acids. Organic and/or inorganic acids can be used. Examples of organic acids that can be used are lactic acid, citric acid, acetic acid (Insect repellent compound – Acids [para. 0001]) ”.
Instant claims 6-9, and 14-15, wherein said constituents are mixed to reach pH of between pH 2 and pH 6, Meier et. al. ‘541 teaches, “ the addition of acid and/or alkaline substances can serve to establish a desired pH range. In the cleaning composition according to the invention the pH value is in the acidic range, preferably between 1 and 7, more preferably between 3 and 6.5, still more preferably between 4.0 and 6.0, in particular 4.5 to 5.8. Solvents (Insect repellent compound – Volatile alkali; bases [para. 0003]).
It would have been obvious to a person having ordinary skill in the art at the time of the instant applications effective filing date to have provided formulation for chemically degrading webs by web-producing composition, because Hoterini, Recosta et. al., and Meier et. al. teaches providing the treatment of repelling invertebrates and insects, which include spiders.
"It is prima facie obvious to combine the compositions each of which are taught by the prior art to be useful for the same purpose, in order to form another composition to be used for the very same purpose.... [T]he idea of combining the teachings from the references, flows logically from there having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.). See also In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960) (Claims directed to a method and material for treating cast iron using a mixture comprising calcium carbide and magnesium oxide were held unpatentable over prior art disclosures that the aforementioned components individually promote the formation of a nodular structure in cast iron.); Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992) (mixture of two known herbicides held prima facie obvious); and In re Couvaras, 70 F.4th 1374, 1378-79, 2023 USPQ2d 697 (Fed. Cir. 2023) (That the two claimed types of active agents, GABA-a agonists and ARBs, were known to be useful for the same purpose—alleviating hypertension—alone can serve as a motivation to combine). One would have had a reasonable expectation of success to achieve the formulation composition for degrading webs by web producing use, because the cited references teach providing the composition in a similar manner for providing insecticidal and invertebrate repelling composition, and because, success merely requires preparing the composition thereof, especially in the absence of the criticality of some undisclosed features, or unexpected results.
Hoterini, Recosta et. al. and Meier et. al. are relied upon for the reasons to prepare a composition for treatment for degrading web and web producing species. If not expressly taught by Hoterini, Recosta et. al. and Meier et. al., based upon the overall beneficial teaching provided by this reference with respect (in the manner disclosed therein, the adjustments of particular conventional working conditions (e.g., determining one or more suitable product, application to the area, and amounts, proportions and ranges thereof in which to perform and providing of aformulation for degrading webs by web-producing species, is deemed merely a matter of judicious selection and routine optimization of adjusting pH which is well within the purview of the skilled artisan.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention.
Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the time the invention was effectively filled. As evidenced by the references, especially in the absence of evidence to the contrary.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Alpa Amin whose telephone number is (571)272-0562. The examiner can normally be reached 8:30 - 6:00.
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/ALPA NILESH AMIN/Examiner, Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655