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
Claims 1, 3-6, 9, 12, 16-18, 20, 23-25, 29, 34, 45, 84, 85 and 89 are currently pending and amendments to the claims filed on 06/26/2026 are acknowledged.
Withdrawn objection/ rejections:
Applicant's amendments and arguments filed 06/26/2026 are acknowledged and have been fully considered. The Examiner has re-weighed all the evidence of record. Any rejection and/or objection not specifically addressed below are herein withdrawn.
The following rejection and/or objection are either reiterated or newly applied. They constitute the complete set of rejection and/or objection presently being applied to the instant application.
New Grounds of Objection/Rejections --- as necessitated by Amendment
Claim Objections
Claims 1 and 45 are objected to minor informalities under 37 CFR 1.75.
Claim 1 recites “wherein upon application to a water body” in line 8, but which would be better to write “wherein upon application to the water body”.
Claim 45 is not written in a proper Markush-type claim format where the Markush-type claim should recite alternatives in a format such as "selected or chosen from the group consisting of A, B, and C." Alternatively, “selected or chosen from A, B or C” can be used. (see MPEP 2111.03 –II and 2117 and MPEP 2173.05(h)).
Appropriate correction is required.
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.
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, 3-6, 9, 16-18, 20, 23-25 and 84-85 are rejected under 35 U.S.C. 103 as being unpatentable over Pu et al. (US2022/0000726A1, of record).
Applicant claims the below claim 1 filed on 06/26/2026:
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For examination purpose, the limitations led by “wherein” in lines 6-9 of claim 1 are intended uses of the claimed product. In order to be limiting, the intended use must create a structural difference between the claimed composition and the prior art composition. In the instant case, the intended uses led by wherein clauses in lines 6-9 do not create a structural difference, thus the intended uses are not limiting. In this context, see the supportive case law holding that “the patentability of apparatus or composition claims depends on the claimed structure, not on the use or purpose of that structure." Catalina Mktg. Int'l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002). Thus, "recitation of a new intended use for an old product does not make a claim to that old product patentable." In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1977). Accordingly, the intended uses of the claimed composition does not patentably distinguish the composition, per se, and thus when the prior art teaches the claimed composition, such undisclosed uses are inherent.
Level of Ordinary Skill in the Art
(MPEP 2141.03)
MPEP 2141.03 (I) states: “The “hypothetical ‘person having ordinary skill in the art’ to which the claimed subject matter pertains would, of necessity have the capability of understanding the scientific and engineering principles applicable to the pertinent art.” Ex parte Hiyamizu, 10 USPQ2d 1393, 1394 (Bd. Pat. App. & Inter. 1988). The level of skill is that of a microorganism-cleaning research scientist, as is the case here, then one can assume comfortably that such an educated artisan will draw conventional ideas from medicine, pharmacy, physiology and chemistry— without being told to do so.
In addition, the prior art itself reflects an appropriate level (MPEP 2141.03(II)).
Determination of the scope and content of the prior art (MPEP 2141.01);
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02); and Finding of prima facie obviousness
Rational and Motivation (MPEP 2142-2143)
Pu discloses a cleaning composition for facilitating or aid microbial population reduction wherein the microorganisms include algae, bacteria, virus, etc. ([0024]), and the composition comprises a water; a foaming agent such as structured siloxanes, with a dimethylpolysiloxane PDMS backbone and hydrophobic alkoxy modifications, polypropylene glycol homopolymers, propoxylated esters, ethoxylated alkane alcohols, ethoxylated alkyne alcohols, and/or alkanes. ([0006]-[0007] and claim 1 of prior art) which reads on the claimed foaming agent; and a bleaching agent such as hydrogen peroxide or sources of hydrogen peroxide in an amount of about 0.1 to about 50% ([0080]) which reads on the claimed algicide as supported by the instant publication at [0080] and the said amount of algicide reads on the claimed effective amount, and thus, the combination of water, foaming agent and algicide read on the claimed aqueous foam precursor, and as noted above, the claimed intended uses are not structurally limiting and the Pu reference teaches the same composition as the claimed composition, the intended uses are implicit (instant claim 1); the composition contains nonionic surfactant such as glycoside ([0101]); the composition further comprises metal cation such as copper, iron, titanium, aluminum, etc. ([0155]) which reads on the claimed flocculant as supported by the instant specification at page 28 (instant claim 25); the water is used in an amount of about 0.1 and about 20% ([0062]) which overlaps the instant range of 5-40% (instant claim 3), and the water is also used in an amount of between about 10% and about 60% ([0064]) in which “60%” touches the claimed same about 60% (instant claim 4); the composition further comprises nonionic surfactants including C6-24 alkylpolyglycoside, sorbitan esters, etc. ([0101]), alkyl sulfates, alkane sulfonates, sorbitan esters, sodium lauryl sulfate ([0112]) (instant claims 5, 6 and 9); the foaming agent is used in an amount of between about 0.1 and about 20% water ([0062]) (instant claim 16); the composition further comprises hydrogen peroxide, sources of hydrogen peroxide, performed peracids, etc. which reads on the claimed algicide oxidant and surfactant (instant claims 17-18); the composition further brightener such as 4,4’-diamino stilbene (=polyphenol, e.g., stilbenoid), curcumin, etc. ([0140]) which reads on the claimed algicide (instant claim 20); the surfactant is used in an amount of less than about 10% ([0162]) that overlaps the instant range of 0.1 to 25% (instant claim 23); and the composition further comprises chelating agent such as EDTA and alkali salts ([0067], [0077] and [0154]), and pH adjusting agent ([0201]) which reads on the claimed additional components (instant claim 24). The composition is provided in the form of aerosol foam or trigger spray or squeeze bottle (e.g., [0171] and [0186]). Although Pu does not expressly teach compressed gas propellant or liquid propellant or expansion gas of instant claims 84-85, since the composition of Pu can be in the form of foam aerosol, it would be implicit to contain the propellant and/or expansion in foam aerosol composition (instant claims 84-85).
In light of the foregoing, instant claims 1, 3-6, 9, 16-18, 20, 23-25 and 84-85 are obvious over Pu.
Response to Arguments
Applicant’s arguments have been fully considered, but are not persuasive.
Applicant argues that Pu’s cleaning compositions are not formulated for application to a waterbody; Pu fails to teach an effective amount of algicide; and PU’s hydrogen peroxide and non-ionic surfactants are bleaching and wetting agents, and PU does not teach or suggest that H2O2, surfactant and/or catalytic metal complexes are effective against phytoplankton when delivered into a waterbody, and the claimed limitation of “an effective amount … to mitigate, inhibit, and/or eliminate phytoplankton growth” finds no counterpart anywhere in Pu.
The Examiner responds that as noted in the body of the Action (see page 5 of Action), the claimed limitations led by “wherein” are intended uses and thus they are not structurally limiting, and Pu teaches/suggests the claimed composition in the form of solution, and thus, such claimed intended uses are implicit; and for example, although Pu teaches H2O2 as bleaching agent, it is well known that the bleaching agent is a strong and effective disinfectant, and when H2O2 is used in the composition, it would do the same activity. Please note that claim 1 is directed to an aqueous composition, not a method. Further, "A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Accordingly, applicant’s arguments are not persuasive.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Pu et al. (US2022/0000726A1, of record) in view of CN104,355,379A (published in 2015, citation is obtained from previously attached google English translation).
Applicant claims the below claim 12 filed on 06/26/2026:
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Pu does not expressly teach the glycoside type surfactant of instant claim 12. The deficiency is cured by CN ‘379.
CN ‘379 discloses alternanthera philoxeroides-based algicide for controlling algae in a waterbody, and the algicide inhibits the growth of algae blooms and it may be due to the content of flavonoid glycosides, i.e., triterpenoid saponins which reads on the claimed glycoside saponins, coumarin, etc., which make it strong anti-algae ability (page 4, 5th paragraph of the translation) (instant claim 12).
It would have been obvious to replace the surfactant of Pu with glycoside saponins of CN ‘379 as a matter of choice or design and such replacement would have yielded no more than the predictable results, i.e., removal of harmful microorganism algae as taught by CN ‘379.
Response to Arguments
Applicant argues that CN ‘379 does not require aqueous solution but rather a solid composition.
The Examiner responds that CN ‘379 is relied for disclosing saponin glycoside, not for aqueous solution. It is noted that [O]ne cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In reKeller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In reMerck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). MPEP 2145.
Claim 29 is rejected under 35 U.S.C. 103 as being unpatentable over Pu et al. (US2022/0000726A1, of record) in view of Ritter et al. (WO1998/034877A2, citation is obtained from previously attached google English translation).
Applicant claims the below claim 29 filed on 06/26/2026:
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Pu does not expressly teach flocculant of instant claim 29. The deficiency is curd by Ritter.
Ritter discloses a cleaning composition for water-treatment comprising flocculant containing polymeric aluminum salts and polybasic organic acid which reads on the claimed flocculant, ad a co-flocculant such as mixture of active agent containing hydrocolloid that reads on the wherein the molar ratio of aluminum salt to carboxylic acid is between 0.5:1 and 50:1 which is identical to the claimed ratio (instant claim 29); and the composition is useful to remove algae, bacteria, viruses, etc.
It would have been obvious to replace the flocculant of Pu with the aluminum salt and polycarboxylic acid of Ritter as a matter of choice or design because such replacement would have achieved no more than the predictable results of removal of harmful microorganism algae as taught by Ritter. Further, Ritter teaches the same molar ratio, and thus, the ordinary artisan would optimize and achieve the claimed range without undue experimentation.
Claims 34 and 45 are rejected under 35 U.S.C. 103 as being unpatentable over Pu et al. (US2022/0000726A1, of record) in view of John et al. (US2022/0132858A1, of record).
Applicant claims the below claims 34 and 45 filed on 06/26/2026:
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Pu teaches flocculant such as metal cation, and but Pu does not expressly teach MPN, polymeric flocculant, aluminum salt, clay or combination thereof of claims 34 and 45. The deficiency is cured by John.
John discloses metal phenolic network (MPN) composition for treating algae in an aqueous environment, and the MPN composition includes a metal phenolic network (MPN) film and a secondary flocculant (abstract); and wherein the composition comprises the MPN containing a polyphenol such as tannic acid and a multivalent metal ion (e.g., Fe3+) coordinated to the polyphenol which reads on the claimed flocculant MPN, and the secondary flocculant comprising at least one of clay particles (e.g., kaolinite or other clay nanosheet), and polyaluminum chloride (PAC) ([0011] and [0044]) which reads on the claimed flocculant and a water which reads on the claimed water ([0011]); and the composition further comprises nanosheet, flavonoids, copper sulfate, hydrogen peroxide, calcium peroxide, etc. ([0011]-[0012] and [0050]-[0052]) which reads on the claimed algicide.
It would have been obvious to replace the flocculant of Pu with MPN, aluminum salt, clay and combination of John as a matter of choice or design and such replacement would have yielded no more than the predictable results of mitigating, inhibiting and/or eliminating algae propagation.
Response to Arguments
Applicant argues that Pu fails to disclose specific flocculant as recited in claim 45.
The Examiner responds that as noted in the body of action, John teaches the claimed specific flocculant to kill microbe, and the combination of the applied art would achieve the claimed invention. It is noted that [O]ne cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In reKeller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In reMerck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). MPEP 2145.
Claim 89 is rejected under 35 U.S.C. 103 as being unpatentable over Pu et al. (US2022/0000726A1, of record) in view of CN113,481,949A (citation is obtained from previously attached google English translation).
Applicant claims the below claim 89 filed on 06/26/2026:
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Pu teaches the claimed aqueous foam solution comprising a foam forming agent, algicide, and water. However, it does not expressly teach the method of instant claim 89. The deficiency is cured by CN ‘949.
CN ‘949 discloses an algae-blocking enclosure of a floating wetland, comprising a floating bed that contains AAC-flavone compound algicide, foaming agent ADC, non-ionic surfactant, solvent, etc. (claim 3 of prior art); and CN ‘949 further teaches applying the floating bed blocks algae enclosure in a water body so that the bed is not easy to adhere to phytoplankton and thus the bed has excellent functions of inhibiting the algae and blocking the algae and has low maintenance cost, and the floating bed material is environmentally-friendly and degradable (abstract) (instant claim 89).
It would have been obvious to modify cleaning foam composition of Pu with application for mitigating, inhibiting and/or eliminating the phytoplankton in a waterbody, as taught by CN ‘949 with a reasonable expectation of success because both references relate to block harmful microorganism in cleaning/killing microbe including algae, and thus, a skilled person in the field may be motivated to apply the algae-blocking composition of Pu to the phytoplankton in a water body to control their growth or elimination; Pu provides a solution foam and CN ‘949 refers to alternative solid foam, and the choice between the solid foam and the solution foam represents a predictable variation or an obvious matter of formulation, absent evidence that the different foam structure produces unexpected results.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103.
Response to Arguments
Applicant’s arguments as to CN ‘949 have been fully considered, but are not persuasive for the reasons as noted above. Further, please note that [O]ne cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In reKeller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In reMerck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). MPEP 2145.
Conclusion
All examined claims are rejected.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYUNG S CHANG whose telephone number is (571)270-1392. The examiner can normally be reached M-F 8-5.
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, Yong (Brian-Yong) S Kwon can be reached at 571-272-0581. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYUNG S CHANG/Primary Examiner, Art Unit 1613
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