DETAILED 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 .
Election/Restrictions
Applicant’s election without traverse of Group I and the species: cornmint oil as the active ingredient, triethyl citrate as the second solvent, rosemary as the additional active ingredient and citric acid as the carboxylic acid in the reply filed on 05/26/2026 is acknowledged.
Claim 20 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 05/26/2026.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 05/05/2025, 09/24/2024 are being considered by the examiner. The signed IDS form is attached with the instant office action.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 1-2, 4-5, 8-19 are rejected under 35 U.S.C. 103 as being unpatentable over Alexis Huckabee (US20230148612A1) and Michael Anthony Majher (WO2021113472A1).
Huckabee teaches “the present disclosure relates to a pest control composition and, more particularly, to a water-based insecticidal composition including (i) mint oil (e.g., spearmint oil, cornmint oil, and mixtures thereof), and (ii) geranium oil. The present disclosure also relates to a pest control composition including (i) eugenol, (ii) water, and (iii) a solvent (e.g., ethyl lactate, butyl lactate, isopropyl alcohol, isopropyl myristate, and mixtures thereof)” (see 0004).
Huckabee teaches wherein the composition comprises of an active ingredient of: about a) between about 0.001 wt. % and about 5 wt. % of a mint oil selected from the group consisting of spearmint oil, cornmint oil, and mixtures thereof and about 55 wt. % to about 86 wt. % of water, about 3 wt. % to about 15 wt. % at least one solvent; about 1 wt. % to about 5 wt. % of at least one surfactant; and about 1 wt. % to about 5 wt. % of at least one propellant, (see claim20).
Huckabee teaches wherein the surfactant can be sodium lauryl sulfate (see claim 7 and 17) selected from a finite list of surfactants.
Huckabee teaches wherein the solvent can be isopropyl alcohol (see claims 5 and 16) selected from a finite list of solvents.
Huckabee teaches wherein the propellant can be carbon dioxide or nitrogen (see claims 9 and 19) selected from a finite list of propellants.
Huckabee does not specifically teach the spray dispenser being connected to a pressurized plastic container having an internal gage pressure from about 414 kPa to about 1,100 kPa.
Majher teaches of pest control sprays (see abstract).
Majher teaches “an aerosol arthropod pest control product comprising an aerosol dispenser assembly and an arthropod pest control composition, wherein the aerosol dispenser assembly comprises a reservoir, a valve assembly in fluid communication with the reservoir, an actuator body, and a nozzle insert comprising a swirl chamber in fluid communication with a plurality of inlet ports and an outlet orifice” (see claim 1).
Majher teaches “the plastic container may comprise multiple layers of other polymer materials” (see 1st para. page 6) and teaches the plastic may be polymeric and may be partially, substantially, or entirely comprised of polyester; polyethylene terephthalate (“PET”) (see last para. page 5).
Majher teaches “the arthropod pest control composition may comprise one or more propellants, as described above. Propellants pressurize the formulation within the container to propel the formulation through the nozzle and out of the container” (see 3rd para page 7).
Majher teaches “the container may be selected for use with a particular compressed gas formulation. As will be appreciated by those skilled in the art, containers used to provide compressed gas products are required by law to be made in accordance with Department of Transportation (DOT) and Interstate Commerce Commission (ICC) regulations. These regulations mandate certain dimensional, material, manufacture, wall thickness, and testing requirements for a container to be charged to a given pressure. For example, a 2P rated container can be used if the internal pressure is from 140 psig to 160 psig” (see 2nd para. page 6). A conversion of 140 psig to 160 psig to kPa equates to: 140 psig × 6.89476 = 965.266 kPa and 160 psig × 6.89476 = 1,103.161 kPa, which is within the pressure parameters being claimed.
Therefore it would have been obvious to persons having ordinary skill in the art before the effective filing date to create the instant invention based on the relied upon prior art. Huckabee teaches the pest control composition comprising of sodium lauryl sulfate, cormint oil, a propellant being nitrogen or carbon dioxide and isopropyl alcohol all within the instantly claimed ranges. Selecting each component among a finite list of active ingredients is prima facie obvious. It would have also been obvious to optimize each component and the volatile organic compounds to be within the instantly claimed ranges because Majher teaches amounts within those ranges.
Majher teaches of plastic containers that are meant for dispersing pesticides which have internal pressures within the instantly claimed ranges and teaches that they are required by law to be made in accordance with Department of Transportation (DOT) and Interstate Commerce Commission (ICC) regulations. Thus, using such a container for dispersing the pesticide taught by Huckabee would also have been prima facie obvious. Regarding claims 10 and 8, pertaining to the limitation of the composition having a turbidity less than about 20 NTU and greater than about 0 NTU and a b* value of about 0 to about 5, and the limitation wherein the composition has a Brooksfield viscosity of from about 1 cps to about 500 cps, please note the Office does not have the facilities for examining and comparing Applicants’ composition with the composition of the prior art. The burden is on applicant to show a novel or unobvious difference between the claimed product and the product of the prior art. See In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977) and In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980), and “as a practical matter, the Patent Office is not equipped to manufacture products by the myriad of processes put before it and then obtain prior art products and make physical comparisons therewith.” In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972). Additionally, it would naturally flow that if the prior art teaches of the same components in the same ranges that the turbidities and viscosities would also be the same as there appears nothing else was done to allow the composition some altered turbidity and viscosity scores.
It would have also been obvious to have the container size store from about 50 g to about 500 g of the pest control composition because this sized container would cover two-fold weight difference which allows for a large amount of the composition to be stored.
Claims 3 and 6 rejected under 35 U.S.C. 103 as being unpatentable over Alexis Huckabee (US20230148612A1) and Michael Anthony Majher (WO202113472A1) as applied to claims 1-2, 4-5, 8-19 above, and further in view of Federal Register (Federal Register/Vol. 69, No. 188/Wednesday, September 29, 2004/Rules and Regulations).
Huckabee was discussed above. Majher teaches the instant pest control product however is silent on it comprising citric acid.
The Federal Register’s document recites EPA standards for tolerances of acetyl tributyl citrate (ARBC) also known as citric acid, citrate (ATBC) also known as citric acid, 2-(acetyloxy)-, tributyl ester (CAS Reg. No. 77–90–7) and triethyl citrate (TEC) also known as citric acid, triethyl ester (CAS Reg. No. 77–93–0) when used as inert ingredients in pesticide products (see right column at top, 1st page).
“The EPA concludes that there is a reasonable certainty of no harm from aggregate exposure to residues of acetyl tributyl citrate (ATBC) also known as citric acid, 2-(acetyloxy)-, tributyl ester (CAS Reg. No. 77–90–7) and triethyl citrate (TEC) also known as citric acid, triethyl ester (CAS Reg. No. 77–93–0) Accordingly, EPA finds that exempting citric acid, 2-(acetyloxy)-, tributyl ester (CAS Reg. No. 77–90–7) and citric acid, triethyl ester (CAS Reg. No. 77–93–0) from the requirement of a tolerance will be safe” (see X. Conclusions, page 4).
Therefore it would have been obvious to persons having ordinary skill in the art before the effective filing date to use citric acid and triethyl citrate in the composition taught by Huckabee and Majher because the Federal Register notes it to be particularly safe and discusses its uses in pesticide formulations. Additionally, Majher discloses using triethyl citrate formed from citric acid (see page 9 first para.) and selecting this as a solvent to be used in the pesticide formulation would have been prima facie obvious given the relied upon art.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Alexis Huckabee (US20230148612A1) and Michael Anthony Majher (WO202113472A1) as applied to claims 1-5, 8-19 above, and further in view of Annemiek Schilder (https://www.canr.msu.edu/news/effect_of_water_ph_on_the_stability_of_pesticides).
Huckabee and Majher teach the instant invention however are silent on the pH range of the composition.
Schilder teaches specifically that “most pesticides are sold in concentrated form and have to be dissolved or suspended in water before they can be applied to crops. This water can come from various sources, such as wells, ponds, rivers, or municipal water supplies. Water naturally varies in the amount of dissolved minerals, organic matter and pH, depending on its source. The pH is a measure of the acidity or alkalinity of water, which refers to the number of hydrogen (H+) and hydroxyl (OH¯) ions in a solution. The scale for measuring pH runs from zero to 14. The lower the pH, the more acidic the solution, while a higher pH indicates that the solution is more alkaline. Water at pH 7 is neutral, meaning there are an equal number of hydrogen and hydroxyl ions in the solution. Many areas in Michigan have alkaline water with high mineral/iron content. In addition, the pH of water from natural sources can vary throughout the season.
The pH of water can negatively affect the stability of some pesticides. Under alkaline conditions, alkaline hydrolysis occurs which degrades the pesticide to non-toxic (inactive) forms. In general, insecticides (particularly organophosphates and carbamates) are more susceptible to alkaline hydrolysis than are fungicides, herbicides or growth regulators. The end result is less active ingredient applied and poor pesticide performance. The degradation of a pesticide can be measured in terms of its half-life. For example, if a product has a half-life of one hour, the amount of active ingredient is reduced to 50 percent in one hour, to 25 percent in the next hour, to 12.5 percent in the next hour, etc. Eventually, the pesticide becomes virtually ineffective. The effect of pH on pesticides varies from product to product and is also moderated by buffering solutions contained in the pesticide formulation. Tank-mixing multiple pesticides can modify the pH of the tank-mix” (see first two para.).
Schilder then shows a list of various pesticides most within the claimed range (see table).
Therefore it would have been obvious to persons having ordinary skill in the art to modify the pH range to be within about pH 3 to about 9 as these ranges appear to be non-disruptive to the half-life of most pesticides and depending on the alkalinity or acidity of the water being used it would have been obvious to modify the pH to be within the ranges disclosed in order to create stable pesticide formulations.
Conclusion
Currently no claims allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JACOB ANDREW BOECKELMAN whose telephone number is (571)272-0043. The examiner can normally be reached Monday-Friday 8am-5pm.
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JACOB A BOECKELMAN Examiner, Art Unit 1655
/ANAND U DESAI/ Supervisory Patent Examiner, Art Unit 1655
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