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 .
Claim Status
Claims 1-9, 11-16 and 18-22 are pending. Claims 1-9 and 11-16 are withdrawn. Claims 18-22 are rejected.
Election/Restrictions
Applicant’s election without traverse of Group II and the species trans,trans-2-4-decadienal and DINO X in the reply filed on September 3rd, 2026 is acknowledged.
Applicants elected combination is not allowable. Claims 18-22 have been examined to the extent that they are readable on the elected embodiment. Subject matter not embraced by the elected embodiment is withdrawn from further consideration. Any subject matter discussed beyond this scope was discovered incidental to the search and has been presented in the interest of compact prosecution.
Claims 1-9 and 11-16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Rejections - 35 USC § 112
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.
Claims 18-22 are 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.
Claims and 21-22 contain the trademark/trade names AlgaeFixTM, DINO X, Aquathol® K, GreenClean® PRO, and Cutrine® Plus. DINO X is not a US trademark or tradename however the Bundesanstalt für Arbeitsschultz und Arbeitsmedizin (BAuA Federal Institute for Occupational Safety and Health) of Germany cites DinoX as a tradename for a commercial algicide. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name.
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.
Claim(s) 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over US 20040161364 A1 by Carlson in view of Casotti, Raffaella, et al. "GROWTH INHIBITION AND TOXICITY OF THE DIATOM ALDEHYDE 2-TRANS, 4-TRANS-DECADIENAL ON THALASSIOSIRA WEISSFLOGII (BACILLARIOPHYCEAE)' J. Phycol. 2005: 41: 7-20. cited in the IDS filed 01/28/2025.
Determining the scope and contents of the prior art. (See MPEP § 2141.01)
The prior art discusses “carbon sequestration in aqueous environments” (title) and discloses the use of a substance to facilitate the sequestration [of] carbon dioxide by removing a portion of a plant biomass from a body of water (abstract). Carlson teaches that the method for removing the biomass comprises applying an aquatic herbicide or algaecide such as endothall (Hydrothol 191®) to the biomass (paragraphs [0017], [0018], [0056]).
Regarding instant claim 19, Carlson teaches that the composition may be in the form of a liquid (paragraph [0019]).
Carlson further specifies that formulation may be used to treat any photosynthetic plant or floral biomass including phytoplankton (diatoms) and brown algae (paragraphs [0060] and [0061]).
Ascertainment of the differences between the prior art and the claims. (See MPEP § 2141.02)
The prior art discloses a composition comprising the commercial algicide endothall but it silent to the use of an additional agent such as trans,trans-2-4-decadienal.
Finding of prima facie obviousness --- rationale and motivation (See MPEP § 2142-2143)
Casotti et al. discuss (title) “Growth Inhibition and Toxicity of the Diatom Aldehyde 2-trans, 4-trans decadienal on Thalassiosira Weissflogii (Bacillariophyceae)” and report (abstract):
A common aldehyde present in marine and freshwater diatoms, 2-trans, 4-trans-decadienal (A3), is involved in the wound-activated response of diatoms to copepod grazing. Upon breakage of the diatom cell membrane, aldehydes are enzymatically produced by the rapid conversion of precursors and strongly impact copepod reproduction by impairing egg production and hatching success, inducing teratogenic embryos modifications. In this study, A3 was assayed with the marine diatom Thalassiosira weissflogii (Grunow) Fryxell et Hasle. The aldehyde concentration necessary to reduce 50% growth rate (EC50) was 0.29 mg·L−1. Decadienal was found to inhibit T. weissflogii cell growth in a dose- and time-dependent manner, with irreversible effects after 24 h of exposure. Decadienal induced a degenerative process, through modifications of cell membrane characteristics, interference with cell cycle progression, and with cell metabolic activity, leading to cell death. A preferential action of A3 on dividing cells was observed. Photosynthetic efficiency significantly decreased upon exposure to the aldehyde, paralleled by an increase in diatoxanthin, suggesting a protective role of this xanthophyll, usually involved in photoprotection. Dying cells exhibited the morphological and biochemical features that bear close resemblance to apoptosis of mammalian cells, including cell shrinkage, chromatin condensation, and degradation of nuclear DNA to nucleosomal size fragments.
Regarding the motivation to combine trans,trans-2-4-decadienal with the composition of Carlson, MPEP 2144.06 states:
"It is prima facie obvious to combine two compositions each of which is
taught by the prior art to be useful for the same purpose, in order to
form a third composition to be used for the very same purpose.... [T]he
idea of combining them flows logically from their having been
individually taught in the prior art." In re Kerkhoven, 626 F.2d 846,
850, 205 USPQ 1069, 1072 (CCPA 1980)
Accordingly, a person of ordinary skill seeking to inhibit the growth of diatoms such as Thalassiosira weissflogii would have been motivated to modify the composition of Carlson to include trans,trans-2-4-decadienal to improve performance of the algicide (corresponding to instant claim 18).
Claim(s) 20-22 is rejected under 35 U.S.C. 103 as being unpatentable over US 20040161364 A1 by Carlson in view of Casotti, Raffaella, et al. "GROWTH INHIBITION AND TOXICITY OF THE DIATOM ALDEHYDE 2-TRANS, 4-TRANS-DECADIENAL ON THALASSIOSIRA WEISSFLOGII (BACILLARIOPHYCEAE)' J. Phycol. 2005: 41: 7-20. cited in the IDS filed 01/28/2025. as applied to claims 18-19 and 21-22 above, and further in view of WO 8912449 A1 by Levy.
Carlson and Casotti et al. in combination teach an algicide comprising trans,trans-2-4-decadienal and a commercial algicide of endothall but do not specify that the endothall is the formulation corresponding to Aquathol® K or that the composition in the form of granules.
Levy discloses “herbicidal delivery compositions and methods for controlling plant populations in aquatic and wetland environments” (title). Levy teaches that the prior art composition includes one or more algicides such as Aquathol® K of instant claims 18 and 21-22 (page 5, lines 1-4; page 18).
Regarding instant claim 20, the prior art teaches formulating the active agents into granules that can produce prolonged or extended release to control aquatic plants such as plankton algae (page 6, lines 9-19).
Accordingly, a person of ordinary skill seeking to optimize the composition of Carlson and Casotti et al. would have been motivated to formulate the algicide as granules to provide for prolonged treatment of the planktonic algae or diatoms. Furthermore, one would be motivated to test various commercial algicides such as Aquathol® K to compare efficacy of the combined algicides.
Conclusion
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/A.A.C./Examiner, Art Unit 1626
/MATTHEW P COUGHLIN/Primary Examiner, Art Unit 1626
