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 .
Summary
Receipt of Applicant’s Response and Amended Claims filed on 07/14/26 is acknowledged. Claims 1-20 are pending and rejected.
Applicants claim amendments overcome the previous prior art rejections of record. The below rejections are newly applied in light of the amendments to the instant claims.
NEW REJECTIONS
Claim Rejections - 35 USC § 102
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, 3-6, 8 and 10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 2020/00390098 (‘098).
Examples of ‘098 teach water based formulations of about 69-70% water, 19% propellant, 8%-9% branched alkanes including hydrocarbon solvents such as petroleum distillate and kerosene, about 1-2% isopropyl alcohol, about 0.7% emulsifier and 0.46% corrosion inhibitor [0041] with ~0.03% prallethrin and 0.1% cypermethrin [0017, 0032, 0042, 0017] and Tables 4c-4e and claims 1-10. According to ‘098 emulsifiers are preferably lecithin, glyceryl monooleates, polysorbates, etc [0028]. The propellants disclosed and claimed in ‘098 include butane and isobutane [0015] (claims 15-16).
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 of this title, 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.
Claims 1 and 3-10 are rejected under 35 U.S.C. 103 as being unpatentable over US 2020/00390098 (‘098) as applied to claims 1, 3-6, 8 and 10 above.
‘098 is taught above and teaches specific embodiments which anticipate instant claim 1 but more broadly the disclosure renders obvious the instant claims.
‘098 teaches that propellants can also be included in overlapping amounts such as 0.5-80% and that water can be included in amounts of up to 90%, even 85% [0028, 0037]. According to ‘098 the varying amounts of propellant and water can suit different application methods [0037] and according to ‘098 the aerosol container pressure also influences the form of the insecticide which can be a spray or a stream.
A reference is analyzed using its broadest teachings. MPEP 2123 [R-5].
“[W]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious”. KSR v. Teleflex, 127 S,Ct. 1727, 1740 (2007)(quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious”, the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR v. Teleflex, 127 S.Ct. 1727, 1741 (2007). The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton.” Id. at 1742. Here a person of ordinary skill in the art at the time of filing would find it obvious of modify the compositions to include water based compositions and compositions that are spray and stream formulation based on varying the amounts of water and/or propellant utilized. Such a modification would be obvious to one of ordinary skill in the art at the time of filing who is not an automaton.
Claims 1-18 rejected under 35 U.S.C. 103 as being unpatentable over US 2020/00390098 (‘098) as applied to claims 1 and 3-10 above, and further in view of US 2009/0163582 (‘582).
‘098 is taught above. ’098 teaches the inclusion of corrosion inhibitors and includes various amounts and exemplifies 0.46% corrosion inhibitor [0041] but does not teach those in claim 2 nor sodium nitrite of claims 11-18 specifically.
‘582 teaches a pesticide composition with pyrethrums such as prallethrin and cypermethrin [0014] in combination sorbitan monooleate [0028] with a hydrocarbon solvent such as paraffinic fluids, etc; alcohols, propellants; and corrosion inhibitors such as sodium benzoate and sodium nitrite [0029].
A person of ordinary skill in the art at the time of filing would combine ‘098 and ‘582 as they are in the same field of endeavor of similar pesticide compositions. Further simple substitution of one corrosion inhibitor generally of ‘098 with the specific ones of ‘582 is obvious to a person who is not an automaton and would yield predictable results. Simple substitution of one corrosion inhibitor for another is within the purview of the skilled artisan and would yield predictable results.
Claims 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over US 2020/00390098 (‘098) as applied to claims 1 and 3-10 above, and further in view of US 20090324509 (‘509).
‘098 is taught above. ‘098 teaches a water-based composition of prallethrin and cypermethrin is effective to kill flying insects including flies and the like ([0005, 00405] and examples).
‘098 does not teach wasps or hornets.
‘509 a pesticidal composition of prall and cypermethrin [0053-0092] comprising petroleum distillates, ethanol and/or isopropanol, etc controls pests including flies and wasps are effectively killed [0020, 0107, 0122, 0140].
A person of ordinary skill in the art at the time of filing would combine ‘098 and ‘582 as they are in the same field of endeavor of similar pesticide compositions. Further combination of a known method of killing flying insects generally of ‘098 with the specific ones of ‘509 for a similar purpose is obvious to a person who is not an automaton and would yield predictable results. Combination of a known method/product of ‘098 which treats/kills flying insects with another of ‘509 for a similar purpose which kills wasps specifically is within the purview of the skilled artisan and would yield predictable results.
Response to Arguments
Applicant's arguments with respect to instant claims have been considered but are moot in view of the new grounds of rejection necessitated by applicants’ amendments.
Conclusions
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BETHANY BARHAM whose telephone number is (571)272-6175. The examiner can normally be reached on M-F 9:30AM-6pm.
The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
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