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 .
Priority
The instant application claims priority to provisional application no. 63/551,116 with a filing date of 2/8/2024. Accordingly, the instant claims are examined with in effective filing date of 2/8/2024.
Specification
The abstract of the disclosure is objected to because it contains a typographical error in the phrase “about 0.0278 to about 0..6365 wt.%” in line 3 and the phrase “about 0.0013 to about 0..388 wt.%” in line 4. This is an obvious typographical error and should be amended to read “about 0.0278 to about 0.6365 wt.%” and “about 0.0013 to about 0.388 wt.%”. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Status of the Claims
Claims 1-18 are pending and under current examination.
Claim Objections
Claims 5 and 12 are objected to because of the following informalities:
Claims 5 and 12 recite the limitations “0..388 wt.%” and “0..108 wt.%”. This is a clear typographical error and should be amended to read “0.388 wt.%” and “0.108 wt.%”.
Appropriate correction is required.
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 1-18 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 1, 5-8, and 12-15 recite the approximation “about”. This renders the claim indefinite because there is no guidance provided in the claims or specification as to what amounts of each component are covered by the term “about”. See MPEP 2173 (b)(III)(A).
Claims 2-4 recite the limitation “the disinfectant concentrate composition of claim 1”. There is insufficient antecedent basis for this limitation in the claims because independent claim 1 recites the limitation “a disinfectant concentrate and composition”. This renders the claim indefinite because it is not clear if the dependent claims 2-4 are referring to the disinfectant concentrate or composition of the independent claim 1.
Claim 5 recites the limitation “a disinfectant composition….comprising dilution water and a disinfectant concentrate composition comprising a mixture of…”. This renders the claim indefinite because it is not clear if the recited weight percentages refer to the amount of the ingredients present in the concentrate composition prior to dilution with water or if they describe the final weight percentage of the ingredients after dilution.
Claim 12 recites the limitation “the disinfectant composition”. There is insufficient antecedent basis for this limitation in the claim.
Claim 12 recites the limitation “the disinfectant composition comprising dilution water and a disinfectant concentrate composition comprising a mixture of…”. This renders the claim indefinite because it is not clear if the recited weight percentages refer to the amount of the ingredients present in the concentrate composition prior to dilution with water or if they describe the final weight percentage of the ingredients after dilution.
Claims 14 and 15 recite the limitation “the disinfectant concentrate composition comprises…disinfectant concentrate composition diluted in…deionized water”. This renders the claim indefinite because it is not clear if the deionized water recited by claims 14 and 15 is included in addition to the dilution water recited by the independent claim 12 or if the deionized water of claims 14 and 15 describes the dilution water recited by the independent claim 12.
Regarding claims 9-11 and 16-18, claims depending from rejected claims have also been rejected because they incorporate all of the limitations of the claims from which they depend, but fail to resolve the indefiniteness concerns outlined above.
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.
Claims 1-18 are rejected under 35 U.S.C. 103 as being unpatentable over Sherry (U.S. Patent Application Publication No. 2017/0173196, publication year: 2017).
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claims 1 and 5, Sherry teaches a composition with cleaning and antimicrobial benefits [0005] that may comprise about 0.01-30% hydrogen peroxide by weight of the composition [0049], from up to about 10% of chelant by weight of the composition [0099], from about 0.01% to about 40% of an acidifying agent [0043], from about 1% to about 10% of a solvent [0084], from about 0.01% to about 60% of surfactant [0026], and water [0073]. The amount of water in a given composition depends on the degree to which the composition is concentrated [0073] and may be deionized water [0072]. The compositions may be formulated as concentrates or ready-to-use compositions [0018]. The acidifying agent may comprise an organic acid, an inorganic acid, or a mixture thereof [0040], such as lactic acid [0042], itaconic acid [0040], and a copolymer of maleic acid with a molecular weight ranging from about 500g/mol to about 1,000,000 g/mol [0040]. The instant specification defines a dispersant to include maleic copolymer (4500MW) ([00021] of the instant specification) and an acidulate to include lactic acid and itaconic acid ([00019] of the instant specification), therefore the Examiner considers the maleic copolymer, lactic acid, and itaconic acid of Sherry to read on the dispersant and acidulate limitations, respectively, of the instant claims.
Sherry teaches phosphoric acid as a suitable inorganic acid [0040] but does not require the presence of phosphoric acid, therefore the Examiner considers the teachings of Sherry to read on an embodiment of the composition that does not contain phosphoric acid. It is noted that Sherry is silent with regards to beta hydroxy acid and therefore reads on the “devoid of…beta hydroxy acid” limitation of instant claims 1 and 5.
Regarding claims 2-4, 9-10, and 16-18, Sherry teaches that the composition may contain a surfactant selected from the group consisting of an anionic surfactant, a cationic surfactant, a nonionic surfactant, an amphoteric surfactant, a zwitterionic surfactant, and mixtures thereof [0032].
Regarding claims 6 and 13, Sherry teaches that the concentrated composition may be diluted with water at a weight ratio of composition to water ranging from about 1:1.5 to about 1:1000 [0021].
Regarding claims 7-8 and 14-15, Sherry teaches that the concentrated composition may be diluted with water at a weight ratio of composition to water ranging from about 1:1.5 to about 1:1000 [0021]. Concentrations may be diluted with water in order to provide an in-use solution having a desired level of detersive or antimicrobial properties. The antimicrobial properties desired may depend on the challenge posed by the target microorganism and may call for a different level of dilution in order to achieve the desired antimicrobial activity [0019].
Regarding claim 12, Sherry teaches the relevant limitations of claims 1 and 5 above. Sherry also teaches that the compositions may be used in the home to clean, sanitize, disinfect, or sterilize hard surfaces [0105].
Ascertainment of the Difference Between Scope of the Prior Art and the Claims
(MPEP §2141.02)
Regarding claim 1, Sherry does not teach a single embodiment or example meeting all limitations of the invention of claim 1.
Regarding claims 5 and 12, Sherry does not disclose a specific example having a weight percentage of chelant with in the range of the instant claim 5.
Regarding claims 7-8 and 14-15, Sherry does not teach a specific volume of concentrate to be diluted in a specific volume of water.
Finding of a Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Regarding claim 1, within the broader scope of Sherry all of the limitations of the invention of claim 1 are met. It would have been prima facie obvious for one having ordinary skill in the art to choose the limitations in the instant claims from those disclosed by Sherry and arrive at this conclusion because such was contemplated by Sherry.
Regarding the weight percentage of chelant as specified in claims 5 and 12, as noted above the prior art teaches the composition(s) disclosed herein may comprise up to about 10%, by weight of the composition (0099). When prior art ranges overlap with the range recited in the instant clams, a prima facie case of obviousness exists (see MPEP 2144.05(I)). Moreover, MPEP 2144.05(II) states:
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Furthermore, Sherry teaches that metal ions in the concentrated compositions may originate from impurities in the water or in the raw materials used to make the compositions [0096]. Metal ions associated with a microorganism may be important for the functioning and survival of the microorganism [0097]. Highly water-soluble chelants may be used to sequester metal ions present in the composition and lipophilic chelants may be used to target the metal ions associated with a microorganism [0098]. The Applicants' specification provides no evidence that the selected weight percentage range in claim 5 was not due to routine optimization and/or that the results should be considered unexpected compared to the prior art. Due to the effects of the chelant on the amount of metal ions present in the composition, it would have been prima facie obvious to a person of ordinary skill in the art at the time of the invention to combine these teachings and alter the weight percentage. One of ordinary skill in the art would have been motivated to change the weight percentage as this could be expected to be advantageous for managing the effects of metal ions on composition performance and stability as well as the effects of metal ions on microorganism survival.
Regarding claims 7-8 and 14-15, the volumes of concentrate and water is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal volume of concentrate and water in order to best achieve the desired results as such would provide advantageous biocidal effect. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955). In the instant case, Sherry teaches that the concentration of the composition in water may be adjusted depending on the desired antimicrobial strength and the microorganism to the targeted by the composition. The Examiner considers it prima facie obvious to optimize the volume of both the composition and water, absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the amount of both concentrate and water would have a direct effect on the antimicrobial performance of the composition and therefore be an optimizable variable.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH ANNE MEYERS whose telephone number is (571)272-2271. The examiner can normally be reached Monday-Friday 8am-5pm ET.
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ELIZABETH ANNE MEYERSExaminer, Art Unit 1617
/KATHERINE PEEBLES/Primary Examiner, Art Unit 1617
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