ETAILED 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 .
Status of the Claims
Claims 1-11 and 15 are withdrawn. Claims included in the prosecution are claims 12-14 and 16-19.
Election/Restrictions
Applicants’ election of Group II, claims 12-19, in the reply filed on 02/28/2026 is acknowledged. Because Applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)). A telephone conversation on 07/09/2026 with David Saliwanchik followed by a message received on 07/12/2026, confirmed a species election made without traverse to prosecute the species arthropod killing active compound Metofluthrin (e.g., claim 1) and arthropod repellent methyl N,N-dimethyl anthranilate (e.g., claim 5). As such, claims 1-11 and 15 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention. Affirmation of this election must be made by applicant in replying to this Office action.
Priority
This application is a 371 of PCT/US2022/042325 filed 09/01/2022 and claims priority to the PRO of 63239632 filed 09/01/2021.
Information Disclosure Statement
The Information Disclosure Statement(s) (IDS) submitted on 03/07/2024, 08/14/2025, and 05/01/2026 is/are in compliance with the provisions of 37 CFR 1.97. Accordingly, this/these IDS(s) has/have been considered by the Examiner.
Claim Objections
Claim(s) 1 and 4 is/are objected to because of the following informalities: Both claims recite D-phenothrin and chlorpyrifos in duplicate. Appropriate correction is required.
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.
Claim(s) 12-14 and 16-19 is/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 applications subject to pre-AIA 35 U.S.C. § 112, the applicant), regards as the invention.
Claim 1 which claim 12 depends recites several Trademarks such as Depil 2X, Mustang Maxx, Warrior, etc. Therefore, for at least the recitation of trademarks in claim 12-14 and 16-19 are indefinite.
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 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 (a) are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
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. Applicants are 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.
1. Claim(s) 12-14 and 16-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Harraca et al. (US 20220142158 A1, filed May 28, 2020) in view of Ray et al. (WO2013059364A2, pub. Apr. 25, 2013).
The applied reference from Ray et al. has a common inventor with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 USC 102(a)(2).
Harraca discloses a method for arthropod control which comprises bringing an insect into direct contact or in contact with vapors of the disclosed arthropod, control composition ([0001], claims 1, 10) to read on a method for controlling an arthropod pest of instant claim 12. Harraca discloses that preferred arthropod control co-ingredients comprise metofluthrin and dimethyl anthranilate ([0114], claim 9) to read on the elected species of an arthropod killing active compound, i.e., Metofluthrin, recited in instant claim 1 from which instant claim 12 depends.
Harraca differs from the instant claims insofar as not explicitly disclosing the elected species of a second compound that is an arthropod repellent, i.e., methyl N,N-dimethyl anthranilate, recited in instant claim 5.
However, Ray discloses a method of repelling an arthropod, comprising exposing the arthropod with a repelling composition, wherein the repelling composition comprises one or more compounds selected from the group consisting of methyl N,N-dimethyl anthranilate, ethyl anthranilate, butyl anthranilate, and 2,3-dimethyl-5-isobutyl pyrizine ([0027], claim 1). Ray discusses throughout the reference about properties identified that are shared between odors known to cause avoidance behavior (e.g., [0025]). The compounds are useful in small quantities, can be delivered in multiple forms, are economical, environmentally friendly, and are present in natural sources ([0089]). The compounds are formulated for application on human skin, on animals, or on plants ([0101]).
Harraca discloses metofluthrin and dimethyl anthranilate. Accordingly, it would have taken no more than the relative skills of one of ordinary skill in the art through routine experimentation to have arrived at a method using a composition to control arthropods comprising effective amounts of the claimed killing active compound metofluthrin and repellent methyl N,N-dimethyl anthranilate because of the known use of anthranilates for their repellent properties to include the methyl N,N-dimethyl anthranilate as taught Ray. Where 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. See MPEP2144.05(II)(A).
Regarding claim 13, Harraca teaches that the invention relates to an arthropod, preferably insect ([0014]) to read on the arthropod pest is an insect pest.
Regarding claim 14 (i.e., arthropod pest is a disease vector), Harraca teaches that the reason why the presence of an arthropod is not desired might be that the arthropod's presence in the air is unpleasant to a subject, the contact of an arthropod on an article transfers diseases and/or germs or the arthropod bites an organism and causes itching, the transmission of diseases and/or germs or the arthropod feeding may be the cause for other diseases and/or conditions ([0089]).
Regarding claim 16 (i.e., used to inhibit, prevent and/or reduce the spread the incidence of pest-borne disease in plants, animals and/or humans), Harraca teaches arthropod control agents help preventing and controlling the outbreak of arthropod-borne diseases, such as malaria (i.e., disease vector) and when applied to skin, clothing, or other surfaces, they may discourage arthropods from landing or climbing on that surface ([0003]). The arthropod killing composition has the ability to kill an arthropod at the arthropod killing source, such as in the air, on the surface of an article or on the surface of an vertebrate, such as a human subject or other mammal, preferably human subject, to which the arthropod killing compound or composition has been applied to ([0099]). When an arthropod killing composition is applied to a plant, an animal or human subject, it is applied in an amount which is killing to the arthropod but not to the subject ([0099]). The arthropod repellent composition has the ability to minimize, reduce, discourage or prevent approach or the presence of an arthropod at the arthropod repellent source, such as in the air, on the surface of an article or on the surface of a vertebrate, such as a human subject or other mammal, preferably human subject, to which the arthropod repellent compound or composition has been applied to ([0101]).
As Harraca teaches an arthropod control composition that is an arthropod repelling composition, preferably an insect repelling composition, more preferably a mosquito repelling composition ([0102]). Mosquitos are well known to spread malaria (i.e., disease vector) when an infected female mosquito bites a healthy human. Here and directly above, the teachings of Harraca read on the limitations of claim 16.
Regarding claims 17 (i.e., surface upon which a pest traverses, rests, mates, lays eggs and/or feeds), Preferably undesired arthropods are blood feeding arthropods that impact vertebrates, e.g. biting fly, bed bug, kissing bug, flea, lice, mosquitos and ticks, even more preferably mosquitos and ticks ([0088]). In a particular embodiment, the surface of a subject is the surface of a human or animal subject, preferably the surface is a human subject, i.e. the skin of a human subject ([0129]) to teach and suggest a surface upon which a pest feeds as in that in the case of mosquitos and ticks.
Regarding claim 18 (i.e., the surface is bedding material, curtains, luggage, fur, or clothing), Harraca teaches that the arthropod controlling composition can be applied to the air, to the surface of an article, the air in the vicinity of the surface of an article or the surface of a subject by usual methods known in the art such as spraying, applying, wearing or diffusing ([0126]). In a particular embodiment, the arthropod controlling composition is applied to the surface of an article ([0127]). In a particular embodiment, the article can be an arthropod control article in particular can be clothes, fabrics, and curtains ([0128]) to read on the species recited in instant claim 18. Harraca adds that the invention relates to a use of a composition as defined hereinabove to control arthropods, preferably insects ([0130]). Any of the surfaces taught by Herraca e.g., clothes, fabric, and curtains, are well-known surfaces upon which a pest traverses, rests, mates, lays eggs and/or feeds e.g., bed bugs as evidenced by Harraca’s teaching of bed bug in paragraph [0088] to read on the claim limitations.
2. Claim 19 is rejected under 35 U.S.C. § 103 as being unpatentable over Harraca et al. (US 20220142158 A1, filed May 28, 2020) in view of Ray et al. (WO2013059364A2, pub. Apr. 25, 2013), and further in view of Van Rooijen et al. (WO2021041301A1, pub. Mar. 4, 2021).
The teachings of Harraca and Ray are discussed above.
Harraca in view of Ray differs from the instant claims insofar as not disclosing wherein the method is used to control an agriculture pest.
However, Van Rooijen discloses compositions including a plurality of plant messenger packs (i.e., lipid reconstructed plant messenger packs (LPMPs)), that are modified to have enhanced cell uptake, e.g., for use in a variety of agricultural or therapeutic methods (abstract, claim 1).
Looking to section iii. entitled, Arthropods, on page 98, Van Rooijen discloses that the PMP compositions and related methods can be useful for decreasing the fitness of an insect, e.g., to prevent or treat an insect infestation in a plant. The term “insect” includes any organism belonging to the phylum Arthropoda (i.e., arthropod) and to the class Insecta or the class Arachnida, in any stage of development, i.e., immature and adult insects. Included are methods for delivering a PMP composition to an insect by contacting the insect with the PMP composition. Additionally or alternatively, the methods include delivering the biopesticide to a plant at risk of or having an insect infestation, by contacting the plant with the PMP composition.
Van Rooijen teaches that the PMP compositions can further include a repellent and in some instances, the PMP compositions include two or more different repellents to repel any of the pests (e.g., insects) and can be contacted with a target plant to reach a target level of repellent concentration and decrease the levels of the pest on the plant relative to an untreated plant and in some instances the repellent is an insect repellent some examples include an insect repellent may be a synthetic or nonsynthetic insect repellent. Examples of synthetic insect repellents include methyl anthranilate and other anthranilate-based insect repellents, and metofluthrin (pg. 51, section viii. Repellents, line 27 and 32).
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Harraca in view of Ray disclose methyl N-N, dimethyl anthranilate and metofluthrin as arthropod control ingredients. Van Rooijen teaches compositions that are used in a variety of agricultural methods including controlling agriculture pests of the Arthropoda phylum. Accordingly, it would have been obvious to one of ordinary skill in the art to have utilized these active agents to aid in controlling an agriculture pest.
Conclusion
Claims 12-14 and 16-19 are rejected.
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Karen Ketcham whose telephone number is (571)270-5896. The examiner can normally be reached 900-500 ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush can be reached at 571-272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Karen A Ketcham/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
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