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 (claims 1-7) in the reply filed on 14 September 2026 is acknowledged.
Claims 8-11 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 14 September 2026.
Claims 1-7 are under current consideration.
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.
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) 1-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rogers et al. (US 2007/0093462 A1; published 26 April 2007; of record) in view of Sawaya (US 2007/0249546 A1; published 25 October 2007).
Rogers et al. discloses an ionic liquid composition that may be a solution with dissolved pharmaceutical active therein (paragraph [0092]) wherein the pharmaceutical active may be an antifungal such as miconazole, ketoconazole, clotrimazole, or bifonazole (paragraph [0194]) wherein the composition may contain nonionic species including solvents in an amount that is typically low such as less than 10 wt% (paragraph [0088]) wherein common solvents include ethanol (i.e., nonionic) and water (paragraph [0503]) wherein aqueous carriers include alcoholic/aqueous solutions (paragraph [0423]) wherein water may be present in the composition at less than 10 wt% (paragraph [0093]) wherein the ionic liquid may have a heteroaryl moiety (paragraphs [0113]-[0115]) and a carboxylic acid and choline moiety (paragraph [0131]).
Rogers et al. does not disclose a mass ratio of (0.1-1):(18-318) for the antifungal drug and solvent as claimed.
Sawaya discloses aqueous solutions containing antifungal agents (title) wherein antifungal agents include miconazole, ketoconazole, and clotrimazole (paragraph [0028]) wherein in such solutions antifungal agents are used in effective concentrations from about 0.001% (w/w) to about 2.0% (w/w) (paragraph [0030]).
It would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Rogers et al. and Sawaya by making the solution of Rogers et al. as discussed above with antifungal such as miconazole, ketoconazole, or clotrimazole (i.e., imidazole antifungal drugs), in ionic liquid, along with ethanol (i.e., alcohol organic solvent) nonionic carrier/solvent in an amount of less than 10 wt%, and water carrier/solvent in an amount of less than 10 wt%, wherein the ionic liquid has heteroaryl (i.e., aromatic), carboxylic acid (i.e., acid-based), and choline moieties, as suggested by Rogers et al., wherein the antifungal agent is present in a concentration of about 0.001-2 wt% as suggested by Sawaya, with a reasonable expectation of success. A person of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to do so to make the solution antifungally effective by including a concentration of antifungal agent therein that was known in the art to be effective as suggested by Sawaya.
Such disclosed concentration of about 0.001-2 wt% antifungal agent means that the remainder of the solution of Rogers et al. in view of Sawaya as discussed above is about 98-99.999 wt%, leading to a ratio of antifungal agent to solvent of about (0.001-2):(98-99.999), which overlaps the claimed mass ratio of (0.1-1):(18-318), and a prima facie case of obviousness exists where prior art and claimed ranges overlap per MPEP 2144.05(I).
Regarding claim 2, as discussed above, the solution of Rogers et al. in view of Sawaya has a concentration of ionic liquid, alcohol organic solvent ethanol, and water of about 98-99.999 wt% wherein the concentration of ethanol therein is less than 10 wt% and the concentration of water therein is less than 10 wt%, such that the ratio of ionic liquid to ethanol to water is about (more than 78) : (less than 10) : (less than 10, or about (more than 39) : (less than 5) : (less than 5), which overlaps the claimed range of (15-68) : (3-30) : (0.1-220), and a prima facie case of obviousness exists where prior art and claimed ranges overlap per MPEP 2144.05(I).
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL B. PALLAY whose telephone number is (571)270-3473. The examiner can normally be reached Monday through Friday from 8:30 AM to 5:00 PM Eastern Time.
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) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue Liu can be reached at (571)272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MICHAEL B. PALLAY/Primary Examiner, Art Unit 1617
