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
Claims 25-26 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected method of killing insects, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on June 30, 2026.
Applicant’s election without traverse of (a) pyrethrum, (b) propylene-based glycol ether, and (c) ethoxylated linear alcohol in the reply filed on June 30, 2026 is acknowledged.
Claim Interpretation
Claim 7 recites “or ii) one or more pyrethroids in an amount of about 0.05 wt.% to about 0.4 wt.%.” The Examiner will not be considering this limitation as the species pyrethrum has been elected as the active ingredient.
Claim 22 recites “the pest control composition of claim 2, wherein the pest control composition comprises about 0.05 wt.% to about 0.5 wt.% of one or more pyrethroids.” The Examiner will not be considering this limitation as the species pyrethrum has been elected as the active ingredient in claim 2.
Claim Rejections - 35 USC § 112(b)
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 2 is 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.
The term “about” in claim 2 is a relative term which renders the claim indefinite. The
term “about” is not defined by the claim, the specification does not provide a standard for
ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention. The Examiner will interpret the following ranges without the “about” term. The ranges include “about .05 wt.% to about 1 wt.%,” “about 0.10% wt.% to about 5 wt.%,” “about 2 wt.% to about 12 wt.%,” “about 0.7 wt.% to about 8.0 wt.%,” “about 74 wt.% to about 91 wt.%,” and “about 1:1 and about 20:1.” Clarification by amendment in claim 2 is required.
Claim 4 is 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.
The term “about” in claim 4 is a relative term which renders the claim indefinite. The
term “about” is not defined by the claim, the specification does not provide a standard for
ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention. The Examiner will interpret the following ranges without the “about” term. The ranges include “about 1.1 wt.% to about 8.0 wt.%,” and “about 0.7 wt.% and to about 6.0 wt.%.” Clarification by amendment in claim 4 is required.
Claim 7 is 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.
The term “about” in claim 7 is a relative term which renders the claim indefinite. The
term “about” is not defined by the claim, the specification does not provide a standard for
ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention. The Examiner will interpret the following ranges without the “about” term. The ranges include “about 0.05 wt.% to about 0.5 wt.%,” and “about 1:1 and about 10:1.” Clarification by amendment in claim 7 is required.
Claim 8 is 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.
The term “about” in claim 8 is a relative term which renders the claim indefinite. The
term “about” is not defined by the claim, the specification does not provide a standard for
ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention. The Examiner will interpret the range “about 0.5 wt.% to about 3 wt.%” without the “about” term. Clarification by amendment in claim 8 is required.
Claim 9 is 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.
The term “about” in claim 9 is a relative term which renders the claim indefinite. The
term “about” is not defined by the claim, the specification does not provide a standard for
ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention. The Examiner will interpret the following ranges without the “about” term. The ranges include “about 0.1 wt.% to about 0.5 wt.%,” “about 0.5 wt.% to about 3.0 wt.%,” and “about 1:1 to about 10:1.” Clarification by amendment in claim 9 is required.
Claim 10 is 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.
The term “about” in claim 10 is a relative term which renders the claim indefinite. The
term “about” is not defined by the claim, the specification does not provide a standard for
ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention. The Examiner will interpret the following ranges without the “about” term. The ranges include “about 0.05 wt.% to about 0.1 wt.%” and “about 5:1 to about 7:1.” Clarification by amendment in claim 10 is required.
Claim 12 is 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.
The term “about” in claim 12 is a relative term which renders the claim indefinite. The
term “about” is not defined by the claim, the specification does not provide a standard for
ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention. The Examiner will interpret “about 1 wt.% to about 15 wt.%” without the “about” term. Clarification by amendment in claim 12 is required.
Claim 15 is 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.
The term “about” in claim 15 is a relative term which renders the claim indefinite. The
term “about” is not defined by the claim, the specification does not provide a standard for
ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention. The Examiner will interpret the following ranges without the “about” term. The ranges include “about 0.1 to about 0.5 wt.%” and “about 1:1 and about 10:1.” Clarification by amendment in claim 15 is required.
Claim 16 is 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.
The term “about” in claim 16 is a relative term which renders the claim indefinite. The
term “about” is not defined by the claim, the specification does not provide a standard for
ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention. The Examiner will interpret the following ranges without the “about” term. The ranges include “about 0.15 wt.% and about 0.3 wt.%,” “about 9:1 and about 10:1,” and “about 0.5 wt.% and 3 wt.%.” Clarification by amendment in claim 16 is required.
Claim 20 is 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.
The term “about” in claim 20 is a relative term which renders the claim indefinite. The
term “about” is not defined by the claim, the specification does not provide a standard for
ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention. The Examiner will interpret the following amounts without the “about” term. The amounts include “about 0.08 wt.%” and “about 6:1.” Clarification by amendment in claim 20 is required.
Claim 22 is 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.
The term “about” in claim 22 is a relative term which renders the claim indefinite. The
term “about” is not defined by the claim, the specification does not provide a standard for
ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention. The Examiner will interpret “about 0.3 wt.% to about 2.0 wt.%” without the “about” term. Clarification by amendment in claim 22 is required.
Claim 28 is 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.
The term “about” in claim 28 is a relative term which renders the claim indefinite. The
term “about” is not defined by the claim, the specification does not provide a standard for
ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention. The Examiner will interpret the following ranges without the “about” term. The ranges include “about 0.1-1.0 wt.%,” “about 1-12 wt. %,” “about 0.5-8.0 wt. %,” and “about 0.5-6.0 wt. %.” Clarification by amendment in claim 28 is required.
Claim 29 is 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.
The term “about” in claim 29 is a relative term which renders the claim indefinite. The
term “about” is not defined by the claim, the specification does not provide a standard for
ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention. The Examiner will interpret “about 0.15 wt.% to about 4 wt.%” without the “about” term. Clarification by amendment in claim 29 is required.
Claim 30 is 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.
The term “about” in claim 30 is a relative term which renders the claim indefinite. The
term “about” is not defined by the claim, the specification does not provide a standard for
ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention. The Examiner will interpret the following amounts without the “about” term. The amount includes “about 0.5 wt.%,” “about 6 wt. %,” “about 2.5 wt.%,” “about 1.5 wt. %,” “about 1.05 wt. %,” and “about 88.25 wt.%.” Clarification by amendment in claim 30 is required.
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.
(a)(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.
Claim(s) 1, 3, 6, and 21 is/are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Best et al. (US 20230189812 A1) (hereinafter Best).
Regarding claim 1, Best teaches a pesticide composition comprising a killing agent; a knockdown agent; a surface-active agent; and a carrier, and the composition is a water-in-oil emulsion (Abstract). In some embodiments, the killing agent is a natural pyrethrum or synthetic pyrethroid ([0017]). Additionally, the pesticide composition contains a surface-active agent, and in some embodiments, the surface-active agent of the present composition may include fatty acid ester, sorbitan fatty acid ester (Lubricit™ SMO), alkyl alcohol ethoxylate (Alkamuls® AL-CS 20, Alkamuls® AL-CS 25), or combinations thereof ([0079]). Furthermore, Best teaches carriers and diluents can include, for example, solvents (e.g., water, alcohols, acids, and esters) ([0051]). In one embodiment, the carrier of the present disclosure comprises from about 0.5% to about 5%, or from about 1% to about 3% or from about 1.5% to about 2% of 1-butoxy-2-propanol (known as butyl propasol or propylene glycol n-butyl ether) ([0052]). It is noted that surface-active agent reads on the claimed “surfactant” and the alkyl alcohol ethoxylate reads on the elected species “ethoxylated linear alcohol.” It is noted that killing agent reads on the claimed “active ingredient” and pyrethrum is the elected species. It is also noted the carrier comprises propylene glycol n-butyl ether reads on the claimed “non-aqueous solvent” and the elected species “propylene-based glycol ether.”
Regarding claim 3, Best teaches the carrier of the present disclosure comprises from about 0.5% to about 5%, or from about 1% to about 3% or from about 1.5% to about 2% of 1-butoxy-2-propanol (known as butyl propasol or propylene glycol n-butyl ether) ([0052]).
Regarding claim 6, Best teaches the fragrance provides a stable formulation that is shelf stable at room temperature, and thus the emulsion will not separate. It is noted that an emulsion that will not separate reads on the claimed “single phase.”
Regarding claim 21, Best teaches he present composition may optionally include one or more agents imparting a pleasant odor thereto (a fragrance agent). Non-limiting examples of fragrance agent or agents imparting a pleasant odor and/or enhancing the pesticidal properties include carvacrol, cymene, cineol, eugenol, thymol, menthol, citral, and limonene ([0059]).
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) 1-3, 5-10, 12, 15-16, 20-22, 28-30, and 32-35 is/are rejected under 35 U.S.C. 103 as being unpatentable over Best et al. (US 20230189812 A1) (hereinafter Best).
The pesticide compositions of Best are discussed above, said discussion being incorporated herein in its entirety.
With respect to claims 1-3, 5-10, 12, 15-16, 20-22, 28-30, and 32-35, Best teaches it is understood that, as used here, “percent,” “%,” and the like are intended to be synonymous with “weight percent,” “wt % ([0029]). Best teaches the killing agent is from about 0.01 wt % to about 1 wt % ([0044], [0143], clause 31), where in some embodiments, the killing agent is a natural pyrethrum or synthetic pyrethroid ([0017]). Moreover, the composition further comprises a synergist selected from the group consisting of piperonyl butoxide (PBO) ([0145[, clause 33, claim 15). Additionally, the surface-active agent of the present composition may include fatty acid ester, sorbitan fatty acid ester (Lubricit™ SMO), alkyl alcohol ethoxylate (Alkamuls® AL-CS 20, Alkamuls® AL-CS 25) ([0079]). It is noted that killing agent reads on the claimed “active ingredient,” and the surface-active agent reads on the claimed “surfactant.”
Regarding claim 2, soft water is in the amount of 77.6746%, which falls into the claimed range “the water is about 74 wt.% to about 91 wt.%” (Table 6, page 10). Futhermore, Best teaches the fragrance provides a stable formulation that is shelf stable at room temperature, and thus the emulsion will not separate. It is noted that an emulsion that will not separate reads on the claimed “single phase.”
Regarding claim 2, 7, and 10, the killing agent is present in the amount of 0.0566 wt%, which overlaps with the claimed ranges “.05 wt.% to about 1 wt.%” and “0.05 wt.% to about 0.1 wt.%” (Example 14, Table 6, page 10).
Regarding claim 10, Best teaches in one embodiment, the carrier of the present disclosure comprises from about 0.5% to about 5%, or from about 1% to about 3% or from about 1.5% to about 2% of 1-butoxy-2-propanol (known as butyl propasol or propylene glycol n-butyl ether) ([0052]). It is noted that propylene glycol n-butyl ether reads on the claimed “polypropylene-based glycol ether.”
Regarding claim 5, 28, and 30, Best teaches in some embodiments, the surface-active agent of the present composition may include fatty acid ester, sorbitan fatty acid ester (Lubricit™ SMO), alkyl alcohol ethoxylate (Alkamuls® AL-CS 20, Alkamuls® AL-CS 25), or combinations thereof. It is noted that surface-active agent reads on the claimed “surfactant” and the alkyl alcohol ethoxylate reads on the elected species “ethoxylated linear alcohol.” With respect to the first and second surfactants, example 16 specifically teaches two surface-active agents at concentrations of 1.9 wt% and 0.5 wt% (Table 5, pages 9-10). It is noted that 1.9 wt% reads on the claimed “about 1.1 wt.% to about 8.0 wt.% of a first surfactant” of claim 5, “a first surfactant present in an amount of about 0.5-8.0 wt. %” of claim 28, and “the first surfactant is present in an amount of about 2.5 wt.%” of claim 30. It is also noted that 0.5 wt% reads on the claimed “a second surfactant present in an amount of about 0.5-6.0 wt. %” of claim 28.
However, Best does not explicitly teach the non-aqueous solvent or surfactant ranges of claim 2, or a weight ratio of piperonyl butoxide or MGK-264 to pyrethrum is between about 1:1 and about 20:1 of claim 2. Best also does not specifically teach the claimed weight ratio of piperonyl butoxide to pyrethrum is between about 1:1 and about 10:1 of claim 7, 9, and 15; the weight ratio of piperonyl butoxide to pyrethrum is about 5:1 to about 7:1 of claim 10; the weight ratio of piperonyl butoxide to pyrethrum is between about 9:1 and about 10:1 of claim 16; and the weight ratio of piperonyl butoxide to pyrethrum is about 6:1 of claim 20. Furthermore, Best does not teach about 0.7 wt.% and to about 6.0 wt.% of a second surfactant in claim 5 or the about 1.5 wt.% of the second surfactant in claim 30. Regarding claims 2, 8-9, 16, 22, and 29-30, Best does not teach a piperonyl butoxide synergist in an amount of about 0.10% wt.% to about 5 wt.%, about 0.5 wt.% to about 3 wt.%, about 0.3 wt.% to about 2.0 wt.%, about 0.15 wt.% to about 4 wt.%, and about 1.05 wt. %. Regarding claims 9, 15-16, 20, 28, and 30, Best does not teach the amount of pyrethrum to be about 0.1 to about 0.5 wt.%, about 0.1 to about 0.5 wt.%, about 0.15 to about 0.3 wt.%, about 0.08 wt.%, about 0.1-1.0 wt.%, and about 0.5 wt.%. Regarding claim 28 and 30, Best does not teach the one non-aqueous solvent present in an amount of about 1-12 wt. % and amount of about 6 wt. %. With respect to the water in claim 30, Best does not teach an amount of about 88.25%.
It would have been obvious for one of ordinary skill in the art to optimize the amount of piperonyl butoxide to pyrethrum in the composition of Best to produce the claimed invention. One of ordinary skill in the art would have been motivated to do so with reasonable expectation of success because Best provided the guidance to do so by teaching the ranges the synergist is from about 0.05 wt % to about 5 wt % and the killing agent is from about 0.01 wt % to about 1 wt %, which overlaps with the claimed weight ratio “about 1:1 and about 20:1” of claim 2. Thus, it is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the amount of the weight ratio in the composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
It also would have been obvious for one of ordinary skill in the art to optimize the amount of piperonyl butoxide to pyrethrum in the composition of Best to produce the claimed invention. One of ordinary skill in the art would have been motivated to do so with reasonable expectation of success because Best provided the guidance to do so by teaching the ranges the killing agent is from about 0.01 wt % to about 1 wt % and the synergist is from about 0.05 wt % to about 5 wt %, which overlap with the claimed weight ratios “piperonyl butoxide to pyrethrum is between about 1:1 and about 10:1” of claims 7, 9, and 15. Thus, it is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the weight ratio in the composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
It would also have been obvious for one of ordinary skill in the art to optimize the amount of piperonyl butoxide to pyrethrum in the composition of Best to produce the claimed invention. One of ordinary skill in the art would have been motivated to do so with reasonable expectation of success because Best provided the guidance to do so by teaching the ranges the killing agent is from about 0.01 wt % to about 1 wt % and the synergist is from about 0.05 wt % to about 5 wt %, which overlap with the claimed weight ratio of “piperonyl butoxide to pyrethrum is between about 5:1 to about 7:1” of claim 10. Thus, it is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the weight ratio in the composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
It would also have been obvious for one of ordinary skill in the art to optimize the amount of piperonyl butoxide to pyrethrum in the composition of Best to produce the claimed invention. One of ordinary skill in the art would have been motivated to do so with reasonable expectation of success because Best provided the guidance to do so by teaching the ranges the killing agent is from about 0.01 wt % to about 1 wt % and the synergist is from about 0.05 wt % to about 5 wt %, which overlap with the claimed weight ratio of “piperonyl butoxide to pyrethrum is between about 9:1 and about 10:1” of claim 16. Thus, it is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the weight ratio in the composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
It would also have been obvious for one of ordinary skill in the art to optimize the amount of piperonyl butoxide to pyrethrum in the composition of Best to produce the claimed invention. One of ordinary skill in the art would have been motivated to do so with reasonable expectation of success because Best provided the guidance to do so by teaching the ranges the killing agent is from about 0.01 wt % to about 1 wt % and the synergist is from about 0.05 wt % to about 5 wt %, which overlap with the claimed weight ratio of “piperonyl butoxide to pyrethrum is about 6:1” of claim 20. Thus, it is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the weight ratio in the composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
It also would have been obvious for one of ordinary skill in the art to optimize the amount of non-aqueous solvent in the composition of Best to produce the claimed invention. One of ordinary skill in the art would have been motivated to do so with reasonable expectation of success because Best provided the guidance to do so by teaching from about 0.5% to about 5%, or from about 1% to about 3% or from about 1.5% to about 2% of 1-butoxy-2-propanol (known as butyl propasol or propylene glycol n-butyl ether), which overlaps with the claimed ranges “about 2 wt.% to about 12 wt.%” of claim 2 and the range “about 1-12 wt. %” of claim 28. Thus, it is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the amount of non-aqueous solvent in the composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
It also would have been obvious for one of ordinary skill in the art to optimize the amount of non-aqueous solvent in the composition of Best to produce the claimed invention. One of ordinary skill in the art would have been motivated to do so with reasonable expectation of success because Best provided the guidance to do so by teaching the ranges from about 0.5% to about 5%, or from about 1% to about 3% or from about 1.5% to about 2% of 1-butoxy-2-propanol (known as butyl propasol or propylene glycol n-butyl ether), which are merely close enough to the claimed amount “about 6 wt. %” of claim 30. Thus, it is noted that the courts have stated where the claimed ranges or amounts “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the amount of non-aqueous solvent in the composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
It also would have been obvious for one of ordinary skill in the art to optimize the amount of surface-active agent in the composition of Best to produce the claimed invention. One of ordinary skill in the art would have been motivated to do so with reasonable expectation of success because Best provided the guidance to do so by teaching the surface-active agent of the present RTU composition may be from about 0.005 wt % to about 5 wt %, which overlaps with the claimed ranges “about 0.7 wt.% to about 8.0 wt.%” of claim 2, “about 0.7 wt.% and to about 6.0 wt.% of a second surfactant” of claim 5, and “the second surfactant is present in an amount of about 1.5 wt. %” of claim 30. Thus, it is noted that the courts have stated where the claimed ranges or amounts “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges or amounts and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the amount of surfactant in the composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
It also would have been obvious for one of ordinary skill in the art to optimize the amount of pyrethrum in the composition of Best to produce the claimed invention. One of ordinary skill in the art would have been motivated to do so with reasonable expectation of success because Best provided the guidance to do so by teaching the killing agent is from about 0.01 wt % to about 1 wt % which overlaps with the claimed ranges “about 0.1 to about 0.5 wt.%” of claims 9 and 15, “0.15 wt.% and about 0.3 wt.%” of claim 16, and “about 0.1-1.0 wt.%” of claim 28. Thus, it is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the amount of pyrethrum in the composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
It also would have been obvious for one of ordinary skill in the art to optimize the amount of pyrethrum in the composition of Best to produce the claimed invention. One of ordinary skill in the art would have been motivated to do so with reasonable expectation of success because Best provided the guidance to do so by teaching the killing agent is from about 0.01 wt % to about 1 wt % which overlaps with the claimed amount “about 0.08 wt.% pyrethrum” of claim 20 and “about 0.5 wt.%” of claim 30. Thus, it is noted that the courts have stated where the claimed ranges or amounts “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges or amounts and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the amount of pyrethrum in the composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
It also would have been obvious for one of ordinary skill in the art to optimize the amount of piperonyl butoxide synergist in the composition of Best to produce the claimed invention. One of ordinary skill in the art would have been motivated to do so with reasonable expectation of success because Best provided the guidance to do so by teaching a synergist selected from the group consisting of piperonyl butoxide (PBO), wherein the synergist is from about 0.05 wt % to about 5 wt %, which overlaps with the claimed range “about 0.10% wt.% to about 5 wt.% of piperonyl butoxide” of claim 2, the range “about 0.5 wt.% to about 3 wt.%” of claims 8-9 and 16, the range “about 0.3 wt.% to about 2.0 wt.%” of claim 22, and the range “of about 0.15 wt.% to about 4 wt.%” of claim 29. Thus, it is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected pyrethrum results showing criticality from the claimed parameters, the optimization of the amount of piperonyl butoxide in the composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
It also would have been obvious for one of ordinary skill in the art to optimize the amount of piperonyl butoxide synergist in the composition of Best to produce the claimed invention. One of ordinary skill in the art would have been motivated to do so with reasonable expectation of success because Best provided the guidance to do so by teaching a synergist selected from the group consisting of piperonyl butoxide (PBO), wherein the synergist is from about 0.05 wt % to about 5 wt %, which overlaps with the claimed amount “about 1.05 wt. %” of claim 30. Thus, it is noted that the courts have stated where the claimed ranges or amounts “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges or amounts and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected pyrethrum results showing criticality from the claimed parameters, the optimization of the amount of piperonyl butoxide in the composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
It also would have been obvious for one of ordinary skill in the art to optimize the amount of water in the composition of Best to produce the claimed invention. One of ordinary skill in the art would have been motivated to do so with reasonable expectation of success because Best provided the guidance to do so by teaching Example 8 (Table 5, page 10), which includes soft water in the amount of 88.3121%. This prior art amount is merely close enough to the claimed amount of “about 88.25 wt.%” of claim 30. Thus, it is noted that the courts have stated where the claimed ranges or amounts “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the amount of non-aqueous solvent in the composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
Regarding claim 32, Best teaches a carrier solvent of propylene glycol n-butyl ether ([0052]). It is noted that the carrier propylene glycol n-butyl ether reads on the claimed “non aqueous solvent” and “propylene-based glycol ether.”
Regarding claim 33, Best teaches a surface-active agent may include fatty acid ester, sorbitan fatty acid ester (Lubricit™ SMO), alkyl alcohol ethoxylate (Alkamuls® AL-CS 20, Alkamuls® AL-CS 25) ([0079]). It is noted that alkyl alcohol ethoxylate reads on the claimed “ethoxylated linear alcohol.”
Regarding claim 34, as previously discussed, Best teaches both a carrier solvent of propylene glycol n-butyl ether ([0052]) and a surface-active agent may include fatty acid ester, sorbitan fatty acid ester (Lubricit™ SMO), alkyl alcohol ethoxylate (Alkamuls® AL-CS 20, Alkamuls® AL-CS 25) ([0079]).
Regarding claim 35, Best teaches in some embodiments, the present composition can include additional art-recognized ingredients commonly used. These ingredients can include, for example, preservatives ([0055]).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the in art the before the effective filing date of Applicant’s invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Claim(s) 12, 15-16, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Best et al. (US 20230189812 A1) (hereinafter Best), in further view of Burke et al. (WO 2010129345 A2) (hereinafter Burke).
The pesticide compositions of Best are discussed above, said discussion being incorporated herein in its entirety.
Best teaches a pesticide composition that can be used in an aerosol container. When used in an aerosol spray, a propellant may optionally be included in the composition or the container. The propellant can include, but is not limited to, nitrogen, carbon dioxide, nitrous oxide, hydrocarbons, such as propane, n-butane, isobutane, and hydrofluoroalkanes ([0062]).
However, Best does not teach the propellant is about 1 wt.% to about 15 wt.%, based on the total weight of the composition of claim 12.
Burke teaches a ready-to-use foamable pesticide composition where the total amount of propellant may be at least about 1% by weight of the composition. In another embodiment, the total amount of propellants in the composition may be from about 1% to about 12% by weight. Suitable propellants include propane, isobutane, dimethyl ether, difluoroethane, tetrafluoroethane, carbon dioxide, and mixtures thereof ([0053]).
It would have been obvious for one of ordinary skill in the art to optimize the amount of propellent in the composition of Best to produce the claimed invention. One of ordinary skill in the art would have been motivated to do so with reasonable expectation of success because Burke provided the guidance to do so by teaching propellants may be from about 1% to about 12% by weight, which overlaps with the claimed range “about 1 wt.% to about 15 wt.%.” Thus, it is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” and even when the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have similar properties, a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985). Absent some demonstration of unexpected results showing criticality from the claimed parameters, the optimization of the amount of propellant in the composition would have been obvious before the effective filing date of Applicant’s invention. See MPEP §2144.05 (I)-(II).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the in art the before the effective filing date of Applicant’s invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Claim(s) 8-9, 16, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Best et al. (US 20230189812 A1) (hereinafter Best) and Burke et al. (WO 2010129345 A2) (hereinafter Burke) as applied to claim 1-2, 5, 8-9, 12, 15-16, and 20 above, and further in view of LeFiles et al. (US 20210345608 A1) (hereinafter LeFiles).
The pesticide compositions of Best are discussed above, said discussion being incorporated herein in its entirety.
However, Best does not teach at least one non-aqueous solvent is a non-aqueous solvent is propylene-based glycol ether with at least 20% water solubility of claims 8-9, 16, and 20.
LeFiles teaches a pesticidal composition that includes at least one pesticidal active ingredient and at least one organic solvent such as benzyl alcohol, propylene carbonate, N-methylpyrrolidone, benzyl acetate, benzyl butyrate, benzyl propionate, diethyl malonate, 3-methoxy-3-methyl-1-butanol, dimethyl benzyl carbinol acetate, phenyl ethyl alcohol, terpinyl acetate, benzyl benzoate, methyl sailcylate, hexyl acetate, benzyl butyrate, diethyl malonate, ethyl acetate, phenoxy ethyl iso-butyrate, terpineol, geranyl acetate, linalyl acetate, ethyl 2-methyl butyrate, propylene glycol diacetate, dipropylene glycol monomethyl ether, and any combination thereof. It is noted that dipropylene glycol monomethyl ether reads on the claimed “propylene-based glycol ether” and “a propylene-based glycol ether with at least 20% water solubility” (refer to Dowanol - dipropylene glycol methyl ether).
It would have been obvious for one of ordinary skill in the art to use dipropylene glycol monomethyl ether as the carrier solvent of Best to produce the claimed invention. It would have been obvious to do so because both LeFiles and Best are commonly drawn to pesticide compositions, and LeFiles provides the motivation to do so by teaching it is preferable that the organic solvent used is not phytotoxic, approved for crop use by the Environmental Protection Agency (EPA) and safe for end user mixing. Dipropylene glycol monomethyl ether is then listed in the group of suitable organic solvents ([0036]). Therefore, it would have been obvious for an ordinary artisan to modify the composition of Best with dipropylene glycol monomethyl ether based on the taught benefits of no phytotoxicity, EPA approval, and safe end user mixing to arrive at the claimed invention with reasonable expectation of success (See MPEP 2143(I)(G)).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the in art the before the effective filing date of Applicant’s invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Claim(s) 29-30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Best et al. (US 20230189812 A1) (hereinafter Best) and LeFiles et al. (US 20210345608 A1) (hereinafter LeFiles) as applied to claim 28-30, and further in view of Dawson et al. (US 20080096763 A1) (hereinafter Dawson).
The pesticide compositions of Best are discussed above, said discussion being incorporated herein in its entirety.
As previously discussed, Best teaches the surface-active agent may include fatty acid ester, sorbitan fatty acid ester (Lubricit™ SMO), alkyl alcohol ethoxylate (Alkamuls® AL-CS 20, Alkamuls® AL-CS 25), or combinations thereof ([0079]). However, Best does not teach wherein the second surfactant comprises a hydrogenated castor oil ethoxylate.
Dawson teaches a non-ionic surfactant aggregate that comprises a water insoluble biocidally active ingredient, a non-ionic surfactant system, and water (Abstract). The preferred embodiments of the invention have the advantage of enabling a water insoluble ingredient eg. a pesticide, to be solubilised in water, by means of a non-ionic surfactant system, to form a mixed non-ionic surfactant aggregate ([0032]). The non-ionic surfactant system may comprise one or more of alkoxylated alcohols, amine ethoxylate, ester ethoxylate, castor oil ethoxylate, etc. ([0024]). In example 7, Dawson teaches an oil external pesticide concentrate that comprises Alkamuls 719E (castor oil ethoxylate) ([0062]). It is noted that Alkamuls 719E reads on “hydrogenated castor oil ethoxylate.”
It would have been obvious for one of ordinary skill in the art to use a castor oil ethoxylate, such as Alkamuls 719E, in the composition of Best to produce the claimed invention. It would have been obvious to do so because Best and Dawson are drawn to compositions that can be pesticides, and Dawson provides the motivation to do so by identifying Alkamuls 719E (castor oil ethoxylate) as a non-ionic surfactant and teaches the advantage of such mixed non-ionic surfactant aggregates is they have no tendency to phase separate across a broad range of temperatures (typically 0-50° C.) at a wide range of water hardness (typically 0-1000 ppm calcium carbonate) (0016]). Thus, an ordinary artisan would be motivated to use Alkamuls 719E (castor oil ethoxylate) in the composition of Best to provide the benefits of a non-ionic surfactant system to yield the claimed invention with reasonable expectation of success (See MPEP 2143(I)(G)).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the in art the before the effective filing date of Applicant’s invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Conclusion
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/E.L.K./Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
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