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 .
DETAILED ACTION
Clam 11 is cancelled.
Claims 1-10 and 12-13 are pending in the current application.
Claims 3-10 and 12-13 are withdrawn from consideration (see discussion, below).
Claims 1-2 are examined in the current application.
Election/Restrictions
Claims 3-10 and 12-13 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Applicant timely traversed the election requirement in the reply filed on July 16th 2026.
Applicant's election with traverse of claims 1-2 in the reply filed on July 16th 2026 is acknowledged. The traversal is on the ground that the claims of Groups I-II are linked within the meaning of PCT 13.2, as the special technical feature is β-cyclocitral that is used for preventing fungal spoilage in post-harvest fruits, vegetables and flowers, and not just β-cyclocitral, as asserted by examiner. This is not found persuasive because the recitation that the β-cyclocitral is for preventing fungal spoilage in post-harvest fruits, vegetables and flowers is merely an intended use recitation that does not impart any further limitations on the composition comprising β-cyclocitral, positively recited, as there are no manipulative differences between the claimed composition comprising β-cyclocitral that is used for preventing fungal spoilage and a composition comprising β-cyclocitral, a composition comprising β-cyclocitral is the technical feature. However, since a composition comprising β-cyclocitral is disclosed in NPL “β-cyclocitral Technical Data”, the claims of Groups I-II are not linked within the meaning of PCT Rule 13.2 so as to form a single inventive concept, and unity between Groups I-II is broken.
Accordingly, the requirement is still deemed proper and is therefore made FINAL.
Claim Rejections - 35 USC § 102/103
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.
(g)(1) during the course of an interference conducted under section 135 or section 291, another inventor involved therein establishes, to the extent permitted in section 104, that before such person’s invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed, or (2) before such person’s invention thereof, the invention was made in this country by another inventor who had not abandoned, suppressed, or concealed it. In determining priority of invention under this subsection, there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.
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.
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 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.
Claims 1-2 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over NPL Sun et al., “Toxic mechanism of eucalyptol and β-cyclocitral on Chlamydomonas reinhardtii by inducing programmed cell death” (from Journal of Hazardous Materials 389 (2020) 121910).
Regarding claims 1-2: Sun discloses that the combination of eucalyptol and β-cyclocitral is known to exhibit potent, antimicrobial allelopathic properties, as in aquatic ecosystems, eucalyptol and β-cyclocitral are two major volatile organic compounds (VOCs) released during cyanobacterial blooms (e.g., Microcystis aeruginosa) (see Sun abstract; Section 1: Introduction). Sun further discloses that together, eucalyptol and β-cyclocitral function as powerful allelochemicals that suppress competing organisms through coordinated attack of Programmed Cell Death (PCD), and Metabolic disruption (see Sun abstract; Section 1: Introduction). Where PCD is manifested when eucalyptol and β-cyclocitral together trigger cellular apoptosis-like mechanisms in competing microalgae and microorganisms. Exposure activates caspase-3 and caspase-9 proteases, leading to cell shrinking, nuclear condensation, and DNA fragmentation/cleavage (see Sun abstract; Section 1: Introduction). Moreover, when combined, metabolic disruption ensues as eucalyptol and β-cyclocitral repress core proteins and compromise cell membrane integrity, resulting in the leakage of internal cellular contents (see Sun abstract; Section 1: Introduction; Section 4: Discussion). Accordingly, reads on a composition comprising β-cyclocitral and eucalyptol.
Moreover, the recitation in claim 1, the composition is for preventing fungal spoilage in post-harvest fruits, vegetables and flowers is merely an intended use recitation. Applicant attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
It is the examiner’s position that the intended use recited in the present claim does not result in a structural difference between the presently claimed composition and the prior art and further that the prior art composition is capable of performing the intended use. In view of the fact Sun discloses a composition comprising eucalyptol and β-cyclocitral as presently claimed, it is clear that the combination of eucalyptol and β-cyclocitral, as disclosed in Sun, would be capable of performing the presently claimed intended use, i.e., be used to prevent fungal spoilage in post-harvest fruits, vegetables and flowers, as set forth in MPEP §2111.02. Accordingly, the recitation in claim 1 that the composition is for preventing fungal spoilage in post-harvest fruits, vegetables and flowers, does not provide patentable distinction between the claims the prior art (see MPEP §2111.02).
Moreover regarding claims 1-2: In the event it is shown that Sun et al. does not disclose the claimed invention with sufficient specificity, the invention is obvious, because Sun et al. discloses the claimed constituents and discloses that they are used together.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached on (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ASSAF ZILBERING/Examiner, Art Unit 1792
