DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after May 08, 2024, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt is acknowledged of Applicants’ claimed invention filed on 05/08/2024 in the matter of Application N° 18/708,520. Said documents are entered on the record. The Examiner further acknowledges the following:
The present application, filed on or after May 08, 2024, is being examined under the first inventor to file provisions of the AIA .
Thus, claims 1-14 represent all claims currently under consideration.
Information Disclosure Statement
One Information Disclosure Statements, filed on 05/08/2024, is acknowledged and have been considered.
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 5 and 10 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.
Claims 5 and 10 lack clarity insofar as claim 5 make reference to a such as and, in claim 10, “the structure which is made of the plastic” has no antecedent basis.
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 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 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Osinga et al. (WO2015052008A1).
Regarding claims 1, 2, 3, 4, 5, Osinga et al. disclose an insecticidal composition comprising an insecticide in powder form applied to a structural substrate (e.g. mesh, net, fabric, etc.). Osinga et al. teaches that powdered insecticidal agents are adhered to the structure for contact-based pest control. Osinga et al. disclose wherein an electrostatic coating consisting of a silicone composition including platinum complex is applied to the structure. The powders that contain the agents can typically be held and bound by the electrostatic coating, but only to the extent that the powders are efficiently transferred to the arthropod when it lands on or comes into physical contact with the mesh structure that has been prepared with that coating. With the transfer in mind, the composition balances the electrostatic forces it applies to the granules (See page 3, lines 7-19). By applying an electrostatic coating in the form of a platinum complex with silicone composition, which contains one or more powders, the agents in the form of powders are effectively stuck to the mesh structure 6 (See page 7, lines 4-8). Additionally, pesticides having melting temperatures higher than 100 degrees Celsius are among those indicated as being appropriate for use in conjunction with the electrostatic material (See page 7, line 24 to page 8, line 4), including those mentioned on page 12, line 1 to page 16, line 15; see also claims 1-15), of the current application. Benzoylurea, Diflubenzuron, and flufenoxuron, etc. are “insect growth regulators” mentioned on page 14, line 31, and page 15, line 3). Osinga et al. also reveal that the insecticide’s composition includes fungi that kill insects, like Metarhizium anisopliae and Beauveria bassiana (See abstract).
Although Osinga et al. does not expressly disclose a particle size of 2-20 µm, or a melting point of 169-172 °C.
The prior art teaches powdered insecticidal compositions and recognizes that particle size is a parameter affecting performance characteristics such as dispersibility, adhesion to target surfaces, bioavailability, and delivery efficiency. Particle size is therefore a result-effective variable, i.e., a variable known in the art to influence the functional properties of a composition. It is well established that 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 MPEP 2144.05. optimization of such parameters is considered to be within the level of ordinary skill because a person of ordinary skill in the art would have been motivated to adjust particle size to obtain improved performance properties expected from known physical principles. The prior art disclosure of powdered insecticides encompasses particulate forms without restricting particle size to any critical or narrowly defined range. Because particle size is a variable known to affect delivery and efficacy, one of ordinary skill in the art would have been motivated to select and adjust particle within commonly used micronized ranges to balance known trade-offs such as surface area vs. stability, dispersability vs. agglomeration, and penetration vs. drift loss. Selecting a particle size within the micrometer range, including 2-20 µm, represents routine optimization of a known variable to achieve predictable improvements in performance. Where the prior art discloses a general powdered insecticide discovering an optimum or workable particle size range through routine experimentation does not render the claimed range patentable. A claimed range that merely falls within, or is an optimization of, a range that would have been obtained through routine experimentation is prima facie obvious.
The melting point of an insecticide is an inherent physical property of the selected chemical compound. Osinga et al. teaches the use of insecticidal powders. Many conventional insecticidal compounds known in the art (e.g. benzoylurea insect growth regulators such as diflubenzuron) possess melting points within or very near the claimed range. If a known insecticide having a melting point of 169-172°C was known in the art at the time of the invention, then selecting that insecticide for use in Osinga’s et al. powder composition would have been obvious. Selecting a known insecticide with known physical properties, including melting point, constitutes the predictable use of prior art elements according to their established functions.
It would have been obvious to one of ordinary skill in the art at the time of the invention to optimize the particle size of Osinga’s et al. insecticide powder to a micrometer-scale range such as 2-20 µm to improve contact efficiency, and select a known insecticide compound having a melting point of 169-172°C for use in the powdered composition.
Regarding claims 6, 8, 9, 12, 13, and 14, according to Osinga et al. a mesh structure composed of iron, fabric, stone, or wood that resembles a cloth, grid, or net can be used to cling to one or more powdered biopesticides. (See page 1, lines 5-7, lines 17-18, and page 3, line 7-10). Whereby the material with the electrostatic charge is on the structure, and Benzoylurea, Diflubenzuron, and flufenoxuron, etc. are “insect growth regulators” mentioned on page 14, line 31, and page 15, line 3). Diatomaceous earth is a powder that repels moisture and dissolves when it comes into contact with the target pest’s cuticula (See abstract, page 16, and page 17, lines 17-18).
Claim 12 differs from Osinga et al. in that it recites a pouch holding the structure, wherein the pouch comprises an electric conducting foil material embodied to electrically shield the structure packaged therein.
It would have been obvious to one of ordinary skill in the art at the time of the invention to provide the electrostatically charged structure of Osinga et al. within a pouch comprising electrically conductive foil material for shielding purposes. Electrically conductive foil packaging materials, such as metalized films and aluminum foil layers, were well known for shielding electrostatically sensitive articles from external electric fields and preventing charge dissipation during storage and transport. Because Osinga’s et al. structure relies on electrostatic charge to retain insecticidal powder, a person of ordinary skill in the art would have recognize that preserving that electrostatic charge during packaging and shipment would improve product stability and performance. The use of conductive foil packaging to electrically shield charged articles represents the predictable use of prior art elements according to their established functions (See KSR).
Optimization of packaging to preserve functional electrostatic charge is considered a matter of routine engineering design. No criticality or unexpected result has been demonstrated.
Regarding Claim 7, which further limits the insecticide composition by requiring that “the protective powder has an average particle size between 0.1 and 5 µm”. The closest prior art, Osinga et al. teaches an insecticidal composition comprising a powdered bioactive material applied to a structure (e.g., mesh, cloth, grid, net, etc.), wherein the powder may include desiccating or protective powders such as diatomaceous earth. Osinga et al. teaches the use of powders that adhere to insects and interact with the insect cuticle to exert pesticidal effects. Diatomaceous earth is a known insecticidal desiccant powder that functions by interacting with and damaging the insect cuticle, leading to moisture loss and death. The effectiveness of such powders is well understood in the art to be influenced by surface area and contact efficiency, both of which are directly affected by particle size. Although Osinga et al. does not expressly disclose that the protective powder has an average particle size between 0.1 and 5 µm, the selection of a particular particle size within a workable range constitutes routine optimization of a result-effective variable. It is well established that particle size of powdered materials affects adhesion, surface area, dispersion, and contact with insect cuticle. Smaller particle sizes increase surface area and improve interaction with the target pest. Optimization of particle size to improve performance would have been within the ordinary skill in the art at the time of the invention.
A person of ordinary skill in the art, seeking to improve adhesion, dispersion, and insecticidal efficacy of the protective powder taught by Osinga et al. would have been motivated to select an appropriate particle size through routine experimentation. Adjusting particle size within the micrometer range to enhance contact efficiency would have been an obvious matter of design choice. Furthermore, the claimed range of 0.1 to 5 µm falls within the conventional micrometer-scale particle sizes commonly used for finely divided powders in pesticidal and desiccant applications. In the absence of evidence demonstrating criticality or unexpected results associated with this specific range, the claimed limitation does not render the composition non-obvious.
It would have been obvious to one of ordinary skill in the art at the time of the invention to provide the protective powder of Osinga et al. with an average particle size between 0.1 and 5 µm in order to optimize adhesion and insecticidal effectiveness.
Regarding claim 10, Osinga et al. disclose an insecticidal system comprising a structure such as a mesh, grid, net, or cloth onto which a powder is provided. Osinga et al. teaches that the structure may be formed of various materials suitable for supporting the powder. Although Osinga et al. does not explicitly state that the structure is made of a non-conductive plastic capable of holding electric charge, Osinga’s et al. disclosure of mesh/net/fabric structures encompasses materials commonly used for such structures, including plastics. Plastic materials (e.g. polymeric meshes and synthetic fabrics) are well known in the art to be electrically non-conductive (dielectric) materials. It is further well established that non-conductive plastics are capable of retaining electrostatic charge, which enables electrostatic adhesion of powders.
A person of ordinary skill in the art, seeking to enhance the retention of electrostatically charged powder on the structure taught by Osinga et al. would have found it obvious to select a non-conductive plastic material for the mesh or fabric structure because plastics are commonly used for mesh, gauze, net, and fabric structures. Plastics are inherently non-conductive. Non-conductive materials are known to retain electrostatic charge. Retention of electrostatic charge would predictably improve adhesion of electrostatically charged insecticidal powder. Thus, selecting a non-conductive plastic mesh to improve electrostatic retention represents no more than the predictable use of a known material for its known property.
Moreover, to the extent Osinga’s et al. structure includes plastic mesh or fabric (which is conventional in the field), such plastic materials inherently possess non-conductive properties and are capable of holding electrostatic charge. The functional language of claim 10 therefore merely describes an inherent property of a conventional plastic structure.
It would have been obvious to one of ordinary skill in the art at the time of the invention to form the mesh/net/fabric structure of Osinga et al. from a non-conductive plastic material capable of holding electrostatic charge in order to enhance retention of electrostatically charged insecticidal powder.
Regarding claim 11, Osinga et al. teaches that applying insecticidal agents to structural elements such as meshes increases the likelihood that the target pest will come into physical contact with the applied agents. The structural configuration of the mesh substantially increases the available contact surface area encountered by the pest during landing, crawling, walking, or resting, thereby promoting greater bodily exposure beyond incidental leg contact. Osinga et al. further discloses that such structures may be formed from materials including nylon, cotton, polyester, or similar substrates. These materials may additionally be modified or supplemented with features that enhance attractiveness to the target pest, thereby further increasing the probability of contact with the insecticidal agent. Accordingly, the prior art recognizes that increasing surface area and selecting suitable structural materials predictably improves pest contact and insecticidal efficacy, rendering such design choices obvious to one of ordinary skill in the art.
Conclusion
No claim is allowed.
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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/KIMBERLY BARBER/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615