DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This is the first Office action on the merits of the claims.
All citations to the Manual of Patent Examining Procedure (MPEP) refer to Revision 01.2024, which was released in November 2024.
Status of the Claims
Claims 1-18, as originally filed on 18 July 2024, are pending.
Claim Rejections - 35 U.S.C. 112(b)
The following is a quotation of 35 U.S.C. 112(b):
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.
Claims 8 and 11 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter that the inventors regard as the invention.
Regarding claims 8 and 11, the phrase “in particular” appears multiple times in both these claims. Does that phrase merely exemplify various species of essential oil (claim 8) and allelochemical (claim 11) and, therefore, is not further limiting? Alternatively, does the phrase actually narrow the claims? MPEP § 2173.05(d) (“If stated in the claims, examples and preferences may lead to confusion over the intended scope of a claim. In those instances where it is not clear whether the claimed narrower range is a limitation, a rejection under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph should be made.”).
In further regard to claim 11, there is no antecedent basis for the following limitation: “the allelochemical.” MPEP § 2173.05(e) (lack of antecedent basis). The examiner recommends that Applicant amend claim 11 to depend on claim 10.
Claim Rejections - 35 U.S.C. 102(a)
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102(a) that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless
(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; or
(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3, 5-7, 9-10, 12, and 18 are rejected under 35 U.S.C. 102(a)(1) and/or 35 U.S.C. 102(a)(2) as being anticipated by Mitterdorfer (EP 3 090 631 A1).
Mitterdorfer is directed to a “sustained release pheromone formulation.” Title.
Mitterdorfer discloses: “The invention relates to a sustained release pheromone formulation comprising a pheromone contained in a porous clay material. The invention further relates to the process of manufacturing such a formulation and its use in agriculture and a method of reducing the population of a pest.” Para. [0001] (emphasis added). Exemplary pheromones are identified in paragraphs [0009] and [0027] of Mitterdorfer. The examiner notes that pheromones are defined as volatile organic compounds (VOCs) in claim 10 of the present application.
“Porous clay materials according to the invention include naturally occurring as well as industrially produced clay materials.” Para. [0012]. “Advantageously, such clay materials have the capability to take up pheromones and release them at a slow rate.” Id.
Mitterdorfer discloses: “Preferably, the porous clay material comprises a zeolite, more preferably the porous clay material is a zeolite. Preferably, the porous clay material comprises clinoptilolite, more preferably the porous clay material is clinoptilolite. Zeolite is a microporous aluminosilicate material, which allows for large amounts of pheromones to be stored and to subsequently be released slowly.” Para. [0014] (emphasis added).
Mitterdorfer discloses: “In an alternative embodiment, the surface of the clay material is coated with a coating. Such a coating may comprise a polysaccharide, such as starch, an inorganic alkali metal and/or an organic and/or inorganic acid. More preferably, the coating is starch. Preferably, the starch may be derived from root vegetables, such as potatoes or cassava or from cereals, such as wheat, rice or maize. Preferably, a surface coating may further extend the release of the pheromones, thereby allowing the use of a smaller amount of pheromones for the same pest control effect.” Para. [0020] (emphasis added). “A preferable method for the production of the formulation of the invention involves the steps of 1) grinding the porous clay material, 2) infusing the pheromone and optionally coating the porous clay material or part of the porous clay material infused with the pheromone.” Para. [0022] (emphasis added); see also claims 7 and 10-11.
On the basis of the foregoing disclosure, claims 1-3 and 9-10 are anticipated by Mitterdorfer.
Regarding claims 5-6, Mitterdorfer discloses: “Preferably the clay material has an weight average particle size of between 0.1 and 200 micrometers, more preferably the weight average particle size is between 0.5 and 100 micrometers, more preferably between 1 and 50 micrometers, more preferably between 2.5 and 25 micrometers, more preferably between 5 and 10 micrometers, more preferably the weight average particle size is between 7 and 9 micrometers and most preferably the weight average particle size is approximately 8 micrometers. The inventors have found that such a particle size allows for an efficient adhesion of the particles to the plant.” Para. [0016] (emphasis added); see also claim 1. “By a weight average particle size in a certain range, as stated above, it is meant that at least 50% of the particles have a weight average particle size within that range, when measured by the above noted techniques.” Para. [0018]. “In other embodiments of the invention, at least about 70%, at least about 95% or at least about 99% of the particles have a weight average particle size within one of the ranges as listed above.” Id. Applicant is referred to MPEP § 2131.03 (anticipation of ranges).
Regarding claim 7, Mitterdorfer discloses: “Zeolites have an ordered crystal structure with a very large number of cavities and a large active surface area (typically 400-600 m2/g).” Para. [0014]. Applicant is referred to MPEP § 2131.03 (anticipation of ranges).
Regarding claim 12, Mitterdorfer identifies (Z)-11-hexadecenyl acetate as an exemplary pheromone. Para. [0009].
Regarding claim 18, Mitterdorfer discloses: “The invention further relates to a method of reducing the population of a pest in an agriculturally used area (e.g., a cornfield), comprising contacting the agriculturally used area and/or the plants growing in said area (e.g., the corn) with the formulation of the invention.” Para. [0024] (emphasis added); see also claim 15.
Claims 1-4, 8-11, 13, and 17-18 are rejected under 35 U.S.C. 102(a)(1) and/or 35 U.S.C. 102(a)(2) as being anticipated by McGee (US 2005/0214337 A1).
McGee is directed to pesticidal compositions. Title.
McGee discloses: “Controlled release compositions (hereinafter “compositions”) of the present invention are useful for the release of essential oils or other volatile agents having pesticidal and/or fungicidal properties in a controlled manner and over prolonged periods of time.” Para. [0006] (emphasis added). Exemplary essential oils and other volatile agents are identified in paragraph [0007].
McGee discloses: “In a first preferred embodiment of a composition according to the present invention, the supporting material may be a material, e.g. a powder material, that is capable of absorbing the essential oil to an extent that the resultant mixture is in the form of a free-flowing powder, and it may be selected from materials that include for example, clays; silicas; celites; zeolites; metal salts, including for example, phosphates; cellulose, such as methyl cellulose; starches; carbonates, such as sodium bicarbonate; borates, such as sodium borate; sulfates such as sodium sulfate; water soluble polymers; borax; and mixtures thereof.” Para. [0008] (emphasis added).
McGee discloses: “In a second preferred embodiment of a composition according to the present invention the composition is in the form of a capsule wherein the supporting material is provided as a core material and the means for controlling the release of the active agent from the supporting material (“controlling means”) is provided as a coating material coating said core material.” Para. [0013] (emphasis added); see also claim 5. Exemplary coating materials are identified in paragraph [0014].
On the basis of the foregoing disclosure, claims 1-3 are anticipated by McGee.
Regarding claim 4, McGee identifies “celites” as an exemplary supporting material. Para. [0008]; see also claim 3. “Celite” is a synonym and/or tradename for diatomaceous earth.
Regarding claim 8, McGee identifies mint and peppermint as an exemplary essential oils. Para. [0007].
Regarding claims 9-11, McGee identifies eugenol as an exemplary volatile agent. Para. [0007].
Regarding claim 13, McGee discloses that “[p]referably, the ratio of essential oil to support material is about 1:20 to about 1:1, more preferably about 1:5.” Para. [0011] (emphasis added). Applicant is referred to MPEP § 2131.03 (anticipation of ranges).
Regarding claim 17, McGee discloses that “[t]he composition of the second preferred embodiment may comprise 5 to 50% by weight of active agent, more particularly about 20% by weight.” Para. [0018] (emphasis added). Applicant is referred to MPEP § 2131.03 (anticipation of ranges).
Regarding claim 18, McGee discloses: “Compositions according to the present invention may be used alone in pesticidal and/or fungicidal applications, or they may be mixed with additional carrier material which may facilitate their application to the plant, seed, soil or other object to be treated, or improve storage, transport and/or handling of the composition.” Para. [0022] (emphasis added).
Claims 1-4, 9-10, 15, and 18 are rejected under 35 U.S.C. 102(a)(1) and/or 35 U.S.C. 102(a)(2) as being anticipated by Howse (US 6,221,375 B1).
Howse is directed to the “pesticidal or herbicidal compositions.” Title.
Howse discloses that “the present invention provides a pesticidal or herbicidal composition in particulate form which comprises composite particles each comprising a core of an inert substrate having a pesticide or herbicide associated therewith, and a coating of an electrically resistive material around the said core, the particles carrying an electrostatic charge.” Column 1, lines 57-63 (emphasis added); see also Figure 1.
Howse identifies “behaviour modifying chemicals such as pheromones, allomones and kairmones” as exemplary classes of pesticide. Column 2, lines 14-15 (emphasis added). The examiner notes that pheromones and allelochemicals are defined as volatile organic compounds (VOCs) in claim 10 of the present application.
Howse discloses: “The compositions of the present invention comprise a core of an inert substrate, i.e. a material which acts merely as a carrier for the pesticide or herbicide and which is chemically and biologically inert. The inert substrate is preferably porous and highly absorbent. Suitable examples of such materials are silicon dioxide, magnesium silicate (talc), diatomaceous earth, cellulose or natural or synthetic polymers such as chitin, chitosan or rubber. The inert substrate may have the pesticide or herbicide associated with it by impregnation into it, or may have the pesticide or herbicide associated with it in some other way for example by adsorption or absorption thereon.” Column 2, lines 18-29 (emphasis added).
Howse discloses: “The cores of the composite particles are coated with a coating of an electrically resistive material, i.e. a material which readily accepts an electrical charge, such as a wax, a lipid, a natural or synthetic resin or a natural or synthetic polymeric material. Examples of waxes which may be used are Carnauba Wax, paraffin waxes, candelilla wax and bees' wax.” Column 2, lines 30-37 (emphasis added).
Applicant is additionally referred to claims 1, 3, 6, and 8-9 of Howse.
On the basis of the foregoing disclosure, claims 1-4, 9-10 of the present application are anticipated by Howse.
Regarding claim 15, carnauba wax and candelilla wax, which are both identified as exemplary coatings (Howse at column 2, lines 35-37), are vegetable waxes. See also column 4, lines 48-49 (“The electrically resistive lipid coating may be, for example, carnauba wax.”).
Regarding claim 18, Howse discloses: “In situations where particular insect pests or fungal pests attack a crop, a suitable pesticide for the insect or fungi may be incorporated into the particles and the crop plants sprayed or dusted with the composition.” Column 4, lines 17-21 (emphasis added).
Claim Rejections - 35 U.S.C. 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:
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.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over McGee (US 2005/0214337 A1).
McGee is discussed above, in the second rejection under 35 U.S.C. 102(a)(1). That discussion is incorporated by reference into this rejection under 35 U.S.C. 103.
Regarding claim 14, McGee discloses: “The composition according to the second preferred embodiment may be in the form of a free-flowing powder within the meaning given to this term above, and may consist of particles having a mean diameter greater than 0.01 mm and less than 2 mm.” Para [0017] (emphasis added). The maximum mean diameter of essentially 1.99 mm is close enough to the granulometry recited in claim 14 (“2 mm”) to support a finding of prima facie obviousness. MPEP § 2144.05(I) (“Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close.”).
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Howse (US 6,221,375 B1) in view of Florido (“The Wax Facts.” Apsley and Company (2022 June 28).
Howse is discussed above, in the third rejection under 35 U.S.C. 102(a)(1). That discussion is incorporated by reference into this rejection under 35 U.S.C. 103.
Regarding claim 16, Howse identifies paraffin wax, carnauba wax, and candelilla wax as exemplary coatings. Column 2, lines 35-37. Howse is silent as to the following species of wax: rapeseed wax. Florido teaches that rapeseed wax is “a natural vegetable wax” and “is one of the most versatile waxes.” Page 6/12. Florido identifies rapeseed wax as (i) “Sustainable & renewable resource,” (ii) “Excellent fragrance throw,” and (iii) “Locally grown reducing carbon footprint.” Page 7/12. Florido teaches that rapeseed wax, which is a soft wax, can be blended with paraffin wax to provide stability, if needed. Id. Before the effective filing date of the claimed invention, the teachings of Florido would have motivated a person having ordinary skill in the art to modify Howse by including rapeseed wax in the coating, in an effort to formulate an eco-friendlier pheromone composition. Therefore, claim 16 is prima facie obvious.
Conclusion
Claims 1-18 are rejected.
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PETER ANTHOPOLOS whose telephone number is 571-270-5989. The examiner can normally be reached on Monday – Friday (9:00 am – 5:00 pm). If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany P. Barham, can be reached on Monday – Friday (9:00 am – 5:00 pm) at 571-272-6175. The fax number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from Patent Center. Status information for published applications may be obtained from Patent Center. Status information for unpublished applications is available through Patent Center for authorized users only. Should you have questions about access to Patent Center, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free).
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) Form at https://www.uspto.gov/patents/uspto-automated-interview-request-air-form.
/P.A./
29 July 2026
/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
Prosecution Insights