DETAILED ACITON
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 .
Election/Restrictions
Applicant’s election without traverse of group II, claim(s) 11-20 and elected species “geranial” as the first active ingredient listed in pat (b) and “geraniol” as the second active ingredient listed in part (c) in which, claim(s) 11-20 encompass the elected species in the reply filed May 21, 2026 is acknowledged. The requirement is still deemed proper and is therefore made FINAL.
Claim(s) 1-10 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim(s) 11-20 are examined on the merits.
Claim Objections
Claim 15 is objected to because of the following informalities:
In claim 15, “size of from” should read “size from”
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.
Claim(s) 11, 14, 17-18 and 20 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 11 is indefinite because it is unclear what “active ingredient” means; the specification provides non-limiting examples of “active ingredient” but it is unclear what the ingredient is “active” for. Thus, the metes and bounds of the claim are unclear.
Claim 14 is indefinite because it is unclear what “total active ingredient” means; it is unclear if “total active ingredient” is the sum of the first ingredient and the second active ingredient or if “total active ingredient” encompasses all of the ingredients within the composition. Thus, the metes and bounds of the claim are unclear.
Claim 17 is indefinite because it is unclear what “3% to about 35% by weight or less” means; it is unclear if any value under 3% or 35% is accepted; the specification does not clarify this issue. Thus, the metes and bounds of the claim are unclear.
Claim 18 is indefinite because it is unclear what “synthetic pesticide” means; the specification does not provide a clear definition. Thus, the metes and bounds of the claim are unclear.
Claim 20 is indefinite because the phrase “preferably” renders the claims indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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.
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.
Claim(s) 11-20 are rejected under 35 U.S.C. 103 as being unpatentable over Schmidt (WO Patent No. 2018026499) in view of Besendorfer (U.S. Pub No. 20100003341 A1), Bessette (U.S. Pub No. 20070190094 A1), Kenji (JP 6957141 B2 – English translation provided) and Chen et al (South African Journal of Botany, (Year: 2010), vol. 76, issue. 04, pp. 643-651).
Schmidt teaches an arthropod control composition that can comprise geraniol, geranial [at concentrations of] 2% and 3% [by weight] (paragraph 0044 and 0045). Schmidt teaches that the composition can comprise water [by weight of] 35% to 85% (paragraph 0051). Schmidt teaches that the composition can comprise isopropyl alcohol [at] 10% by weight (paragraph 0047). Schmidt teaches that the composition can comprise ethanol ([a known volatile organic compound (VOC)]) [by weight of] 3% to 4% (paragraph 0047). Schmidt teaches that the composition can contain sodium lauryl sulfate ([SLS]) (paragraph 0060). Schmidt teaches [that] the addition of base can be used to control the pH of the resulting formulation, which is preferably in the range of 6.0 to 9.0, more preferably 6.0 to 8.0, particularly 6.5 to 7.5, and especially 6.8 to 7.0 w/w. A significant improvement in the arthropod control properties of formulations according to the present disclosure has been observed at these pH values (paragraph 0041).
Schmidt does not teach from about 4% to about 9%, by weight of the composition, of sodium lauryl sulfate (as stated within part (a) of claim 11 of the present invention). Schmidt does not teach that geranial and geraniol are the first active ingredient and the second active ingredient, respectively (as stated within claim 11, part (b) and (c) of the present invention). Schmidt does not teach that the composition comprises a carboxylic acid selected from the group consisting of citric, malic, acetic, fumaric, humic and mixtures thereof (as stated within claim 12 of the present invention). Schmidt does not teach the weight ratio of sodium lauryl sulfate to total active ingredient is from about 1:3 to about 3:1 (as stated within claim 14 of the present invention). Schmidt does not teach that the composition is an oil-in-water emulsion comprising particles having an intensity mean particle size of from about 2 nm to about 100 nm, as measured according to the particle size test method (as stated within claim 15 of the present invention). Schmidt does not teach that the composition is substantially free of synthetic pesticides, mineral oil, colorants, or a combination there of (as stated within claim 18 of the present invention). Schmidt does not teach that the composition is packaged in a transparent of translucent container (as stated within claim 19 of the present invention). Schmidt does not teach that the active ingredients are food use safe, preferably all the ingredients are food use safe (as stated within claim 20 of the present invention).
Bessette teaches a pesticidal composition [that can be put into a] container. The container may be made of any suitable material such as a polymer, glass, metal, or the like (paragraph 0071).
Besendorfer teaches an insecticidal composition that can comprise fumaric acid (paragraph 0008).
Kenji teaches an oil-in-water emulsion [for pest control] having an emulsion or clear appearance at room temperature and having a particle size of 1 μm or less (claim 5).
Chen et al teaches [that] geraniol is a commercially important terpene alcohol occurring in the essential oils of several aromatic plants. It is one of the most important molecules in the flavour and fragrance industries and is a common ingredient in consumer products produced by these industries. In addition to its pleasant odour, geraniol is known to exhibit insecticidal and repellent properties and used as a natural pest control agent exhibiting low toxicity (abstract).
Regarding claim(s) 11-13 and 16-20, the composition as taught by Schmidt can be modified to include fumaric acid as taught by Besendorfer, in addition, the composition can include the fact that Schmidt’s composition can be formulated into an oil-in-water emulsion-type composition as taught by Kenji with further additional knowledge that the pesticide composition taught by Schmidt can be packaged into a container that is made of glass material (which is considered transparent) as taught by Bessette. One of ordinary skill in the art and in analytical chemistry would reasonably expect to make the combination using the aforementioned references to create the ideal pesticidal composition that when the ingredients (e.g. SLS, geraniol, geranial, isopropyl alcohol and water) are combined, that would create a composition that intrinsically would have the pH range of about 3.0 to about 9.0 (regardless of the addition or non-addition of base), in which, a pH of about 5 to about 7 also falls within that range to create a succinct pest control composition. In addition, one of ordinary skill in the art would reasonably expect that the composition that has SLS, geraniol, geranial, isopropyl alcohol and water would intrinsically be substantially free of synthetic pesticides, mineral oil, colorants, or a combination thereof and that also, the contained ingredients would intrinsically be food use safe. Moreover, one of ordinary skill in the art would reasonably expect to use geraniol and geranial as active ingredients within the pest control composition in which, geraniol is known to exhibit insecticidal and repellent properties and [is known to be] used as a natural pest control agent exhibiting low toxicity as taught by Chen et al; and given that geranial is the oxidative product of geraniol, one would reasonably expect for geranial to have the same targeted effects as an active ingredient within a pest control composition.
Regarding claim(s) 11 and 14-15, the combined aforementioned references does not explicitly teach that the sodium lauryl sulfate is from about 4% to about 9%, by weight of the composition (as stated within claim 11, part (a) of the present invention), does not teach the weight ratio of sodium lauryl sulfate to total active ingredient is from about 1:3 to about 3:1 (as stated within claim 14 of the present invention) and does not teach that the oil-in-water emulsion comprising particles having an intensity mean particle size of from about 2 nm to about 100 nm, as measured according to the particle size test method (as stated within claim 15 of the present invention). However, as discussed in MPEP section 2144.05(II)(A), “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).” The references teach the use of each of the ingredients in a composition. Varying the concentration of ingredients within a composition is not considered to be inventive unless the concentration is demonstrated as critical. In this particular case, there is no evidence that the claimed concentration of the ingredients produces an unexpected result. Thus, absent some demonstration of unexpected results from the claimed parameter, this optimization of ingredient concentration would have been obvious before the effective filing date of applicant’s claimed invention. One of ordinary skill in the art would reasonably expect for one skilled in pest control compositions to optimize a surfactant, like SLS to total active ingredient as well as to optimize particles within the oil-in-water (O/W) emulsion also using the definition of the particle size test method in order to create a succinct pest control composition for use as needed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nashara L Moreau whose telephone number is (571)272-5804. The examiner can normally be reached Monday - Thursday, 8 AM - 4 PM ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anand U Desai can be reached at (571)272-0947. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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NASHARA L MOREAUExaminer, Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655
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