DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 03/30/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims: (1) the 35 U.S.C. §102(a)(1) rejections of claims 253 and 368 over Araneda have been withdrawn; (2) the 35 U.S.C. §103 rejection of claim 393 over Araneda and Pastor has been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 253, 394-397, 498-554
Withdrawn claims: 516-523, 528-529, 532-554
Previously cancelled claims: 1-252, 254-367, 369-392, 398-401, 407, 409, 420-456
Newly cancelled claims: 368, 393, 402-406, 408, 410-419, 457-497
Amended claims: 253, 394-397
New claims: 498-554
Claims currently under consideration: 253, 394-397, 498-515, 524-527, 530-531
Currently rejected claims: 253, 394-397, 498-515, 524-527, 530-531
Allowed claims: None
Election/Restrictions
Newly submitted claims 516-523, 528-529, and 532-554 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons:
Claims 516, 528-529, 532-533, and 549-554 are directed to a different method than the method of claim 253 as the method of claim 253 involves processing and lipid extraction which are not part of an insect life cycle loop. As such, the method of claims 516, 528-529, 532-533, and 549-554 is considered to be mutually exclusive from the method of claim 253.
Claims 522-523 are directed to non-elected Species O (i.e., method comprising tracking data and transporting insects).
Claims 534-548 are directed to non-elected Species H and/or O (i.e., method of monitoring the growing insects with sensor and/or camera; method comprising tracking data and transporting insects)
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 457-497 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Priority
Applicant amended claim 499 to recite that the insects comprise black soldier flies (Hermetia illucens). Black soldier flies were first disclosed in the U.S. Application No. 16/990,854 filed 08/11/2020. Given that the limitation in amended claim 253 to include black soldier flies finds support in U.S. Application No. 16/990,854 filed 08/11/2020, the claim has the effective filing date of 08/11/2020. See MPEP 2152.01(B).
Claim Objections
Claims 394-395, 499, and 526-527 are objected to because of the following informalities:
In claim 394, “producing insect eggs within and/or on the breeding material; incubating the insect eggs to produce the hatched insects” should be read as “producing insect eggs within and/or on the breeding material; and incubating the insect eggs to produce the hatched insects”.
Claim 395 needs a “.” at the end of the sentence.
In claim 499, “Hermetia illucens” should be read as “Hermetia illucens”.
In claims 526 and 527, “wherein each adult insect produces” should be read as “wherein each adult female insect produces”.
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.
Claims 253, 394-397, 498-515, 524-527, and 530-531 are rejected under 35 U.S.C. 112(b) 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.
Claim 253 recites a step of “directing at least a portion of the separated insects and/or at least a portion of the insects grown in the mixture to a breeding stage for reproduction. Claim 253 also recites a step of “processing the separated insects to produce processed insects”. The phrase “at least a portion” means that up to 100% of the separated insects and/or insects in the mixture may be directed to the breeding stage. As such, it is unclear as to whether the method: requires the step of separating the insects (i.e., if 100% of the insects from the mixture are sent to the breeding stage, there are no more insects to separate); and/or requires the step of processing the separated insects (i.e., if 100% of the insects from the mixture or 100% of the separated insects are sent to the breeding stage, there are no more insects to process). Therefore, the claim is indefinite.
For the purpose of this examination, the claim will be interpreted as meaning that a portion of the separated insects and/or a portion of the insects in the mixture are directed to a breeding stage while the remaining portion is sent to processing.
Claim 512 recites “a production population”. However, it is unclear as to what is meant by “a production population”. Therefore, the claim is indefinite.
For the purpose of this examination, the “production population” will be interpreted as the insects that are sent to processing.
Claim 524 recites “wherein the insects are maintained”. However, it is unclear as to which insects the phrase “the insects” refers (e.g., the insects in the mixture, separated insects, insects in the breeding stage, hatched insects, insects for processing). Therefore, the claim is indefinite.
For the purpose of this examination, “the insects” will be interpreted as referring to the insects in the breeding stage.
Claims 394-397, 498-511, 513-515, 525-527, and 530-531 are rejected by reason of dependency from at least claim 253.
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.
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.
Claims 253, 394-397, 498-503, 511-515, 524-527, and 530-531 are rejected under 35 U.S.C. 103 as being unpatentable over Gandelman (Gandelman, A., “Black soldier flies as a sustainable feed alternative for aquaculture”, 2013, Sustainable Agriculture Research and Education (SARE), https://projects.sare.org/sare_project/fne13-776/) in view of Makkar (“Makkar et al., “State-of-the-art on use of insects as animal feed”, 2014, Animal Feed Science and Technology, 197, pages 1-33).
Regarding claim 253, Gandelman teaches a method comprising: providing a feedstock (corresponding to food waste); supplying the feedstock to insects and/or supply the insects to the feedstock to form a mixture, wherein the insects eat the feedstock; growing the insects within the mixture comprising the insects and the feedstock; and separating the insects from the mixture to produce separated insects and the insect-depleted mixture, wherein the separated insects comprise a reduced amount of feedstock relative to the mixture and wherein the insect-depleted mixture comprises at a least a portion of the feedstock and has a reduced amount of insects relative to the mixture (corresponding to the insects leaving the compost pile) (page 2, 1st -2nd paragraphs under “Project objectives from proposal”). Insects are living organisms and thus, contain protein and lipids so that the separated insects comprise lipids and protein as presently claimed.
Gandelman teaches that the method then comprises: directing at least a portion of the separated insects and/or at least a portion of the insects grown in the mixture to a breeding stage for reproduction (corresponding to the second group of insects being selected for breeding); producing insect eggs from the insects directed to the breeding stage; incubating at least a portion of the insect eggs to produce hatched insects; and re-supplying at least a portion of the hatched insects to the mixture as at least a portion of the insects supplied to the feedstock (corresponding the new larvae being collected and brought the consumption containers) (page 2, 2nd paragraph under “Project objectives from proposal” – page 3, 1st paragraph).
Gandelman also teaches that the remaining separated insects (corresponding to the insects in the first group) are fed to fish (page 2, 2nd paragraph under “Project objectives from proposal”). Gandelman does not teach that the method further comprises: processing the remaining separated insects to produce processed insects; and extracting lipids from the processed insects.
However, Makkar teaches that reared insects may be used as meal to feed fish (page 3, 2nd -4th paragraphs under section 2; page 5, section 2.2.2). Makkar teaches that the reared insects may be processed into defatted meal by drying, grinding, and/or pressing (page 4, 1st paragraph under section 2.1) as recited in present claim 253. Since defatted meal means that the lipids have been removed, Makkar discloses extracting lipid from the processed insects as recited in present claim 253.
It would have been obvious for a person of ordinary skill in the art before the effective filing date of the present invention to have modified the method of Gandelman to include processing the remaining separated insects to produce processed insects; and extracting lipids from the processed insects. Since using insects as a source of fish food is known in the art as disclosed by Makkar (page 5, section 2.2.2), it would have been obvious for a skilled practitioner to have processed and extracted lipids from the insects of Gandelman since Gandelman discloses feeding the insects to fish. In combining the teachings of Gandelman and Makkar, the skilled practitioner would be motivated to process the remaining separated insects of Gandelman by drying, grinding, and/or pressing; and then to extract lipid from the processed insect to produce extracted insect lipid and the lipid-depleted insects (corresponding to defatted meal), wherein the lipid-depleted insects include a reduced amount of the lipid relative to the processed insect and the extracted lipid comprises a reduced amount of protein relative to the processed insects as presently claimed, thereby rendering the claim obvious.
Regarding claim 394, Gandelman teaches the invention as described above in claim 253, including the method further comprising: providing a breeding material (corresponding to cardboard) the insects directed to the breeding stage; producing eggs within and/or on the breeding material; and incubating the insect eggs to produce the hatched insects (page 2, 2nd paragraph under “Project objectives from proposal” – page 3, 1st paragraph).
Regarding claim 395, Gandelman teaches the invention as described above in claim 394, including the breeding material is cardboard (page 2, 2nd paragraph under “Project objectives from proposal”).
Regarding claims 396 and 397, Gandelman teaches the invention as described above in claim 394, including separating the hatched insects from the breeding material to produce separated breeding material prior to re-supplying the hatched insects to the mixture (corresponding to the new larvae being collected) (page 2, 3rd paragraph under “Project objectives from proposal”). The prior art does not specify as to whether the breeding material is the same breeding material that was separated from the hatched insects; or whether the breeding material is new breeding material. However, both the use of new breeding material and the use of at least a portion of old breeding material is known in the art of insect breeding colonies. Therefore, the claimed usage of at least a portion of the separated breeding material as recited in present claim 397 is rendered obvious, especially in light of no assertion of unexpected results attributed to such a method step.
Regarding claim 498, Gandelman teaches the invention as described above in claim 253, including the breeding stage comprises adult insects that lay the insect eggs (page 2, 2nd paragraph under “Project objectives from proposal”).
Regarding claim 499, Gandelman teaches the invention as described above in claim 498, including the adult insects comprise black soldier flies (Hermetia illucens) (page 2, 1st paragraph under “Project objectives from proposal”).
Regarding claim 500, Gandelman teaches the invention as described above in claim 498, including the adult insects are maintained for mating and egg production (page 2, 2nd paragraph under “Project objectives from proposal”).
Regarding claim 501, modified Gandelman teaches the invention as described above in claim 498, including the adult insects comprise black soldier flies and black soldier flies do not consume feedstock during the breeding stage (Gandelman, page 2, 1st paragraph under “Project objectives from proposal”; Makkar, page 4, 2nd paragraph under Table 2).
Regarding claims 502 and 503, Gandelman teaches the invention as described above in claim 498, including the breeding material for the laying of eggs is placed inside a structure comprising a screen cage (page 2, 2nd paragraph under “Project objectives from proposal”). Therefore, method comprises laying insect eggs into (i.e., inside) a structure comprising screen, wherein the eggs are laid on or into a breeding material inside of the structure as recited by present claims 502 and 503.
Regarding claims 511, 512, 513, and 515, Gandelman teaches the invention as described above in claim 253, including the breeding stage is maintained separated from the mixture comprising the insects and the feedstock (corresponding to the second group of insects being housed in a screen cage and the mixture being held in consumption containers) as recited in present claim 511 (page 2, 1st paragraph under “Project objectives from proposal”- page 3, 1st paragraph). Furthermore, the insects in the mixture are considered to be a production population since at least a portion of the insects in the mixture will be processed. Therefore, Gandelman also teaches that the production population is separate from the insects comprising the breeding population in the breeding stage as recited in present claim 512; and that the production population comprises insects grown for processing as recited in present claim 513. Since the mixture also contains insects from which insects for the breeding stage will be obtained (page 2, 2nd paragraph under “Project objectives from proposal”), Gandelman also teaches that at least a portion of the production population is directed to the breeding stage as recited by present claim 515.
Regarding claims 514, Gandelman teaches the invention as described above in claim 512, including the breeding population comprises adult insects (page 2, 2nd paragraph under “Project objectives from proposal”).
Regarding claims 524 and 525, Gandelman teaches the invention as described above in claim 253, including the insects in the feedstock, insects in the breeding stage, and hatched insects are maintained in an environment wherein the temperature and humidity are controlled (page 2, 1st -2nd paragraphs under “Project objectives from proposal”).
Regarding claims 526 and 527, Gandelman teaches the invention as described above in claim 498, including that each female adult insect produces 500-900 eggs (page 2, 2nd paragraph under “Project objectives from proposal”), which falls into the range recited by present claims 526 and 527.
Regarding claims 530 and 531, Gandelman teaches the invention as described above in claim 512, including the insects used for reproduction are separated from the insects used for feeding fish; and that the insects directed to feeding the fish are separated from the insects used for breeding (corresponding to the insects in the first group being fed to fish while insects in the second group are used for breeding) (page 2, 2nd paragraph under “Project objectives from proposal”). Makkar teaches that the insects used to feed fish are processed for lipid extraction (page 4, 1st paragraph under section 2.1). Therefore, the combination of prior art teaches that the insects used for reproduction are not processed for lipid extraction; and that the insects directed to processing are separate from insects directed to breeding as recited in present claims 530 and 531.
Claims 504-510 are rejected under 35 U.S.C. 103 as being unpatentable over Gandelman (Gandelman, A., “Black soldier flies as a sustainable feed alternative for aquaculture”, 2013, Sustainable Agriculture Research and Education (SARE), https://projects.sare.org/sare_project/fne13-776/) in view of Makkar (“Makkar et al., “State-of-the-art on use of insects as animal feed”, 2014, Animal Feed Science and Technology, 197, pages 1-33) as applied to claim 503 above, and further in view of Courtright (US 2014/0020630).
Regarding claims 504, 505, 506, 507, and 509, Gandelman teaches the invention as described above in claim 503, including the breeding insects are provided a screen cage with an egg laying space (page 2, 2nd paragraph under “Project objectives from proposal”). Gandelman does not teach that there is a structure positioned above, adjacent to, or in contact with the breeding material as recited in present claim 504. Gandelman also does not teach that the structure comprises one or more openings and/or interstitial spaces through which the insect eggs pass and land on breeding material so as for the eggs to be physically separated from the adult insects as recited in present claims 505, 506, 507, and 509.
However, Courtright teaches a screen cage for mating insects wherein the floor of the screen cage comprises an opening connected to a well containing a breeding material (corresponding to sponge) [0027]-[0030]. Therefore, Courtright teaches a structure located adjacent to and in contact with breeding material, wherein the structure comprises openings as recited in present claims 504, 505, and 506. Courtright teaches that insects lay eggs on the breeding material; and that the floor of the cage vibrates to move any eggs from the cage into the well [0011], [0018]-[0019], [0029]-[0030], Fig. 3. Therefore, Courtright teaches that the eggs pass through the opening to land onto or into the breeding material, thereby separating the eggs from the adult insects as recited in present claims 507 and 509. Courtright states that the well located below the cage assists in easy removal and cleaning of the breeding substrate and eggs [0028]-[0029].
It would have been obvious for a person of ordinary skill in the art before the effective filing date of the present invention to have modified the cage in the breeding stage of Gandelman to include a well for holding breeding material and collecting eggs as taught by Courtright. Since Gandelman teaches that the breeding insects are provided a screen cage with an egg laying space (page 2, 2nd paragraph under “Project objectives from proposal”), but does not describe the egg laying space, a skilled practitioner would have been motivated to consult an additional reference such as Courtright in order to determine a suitable egg laying space. In consulting Courtright, the practitioner would find that a structure located beneath the screen cage wherein the structure holds breeding material and eggs makes for easy cleaning and removal of the breeding material and the eggs. Therefore, the combination of prior art renders present claims 504, 505, 506, 507, and 509 obvious.
Regarding claims 508 and 510, modified Gandelman teaches the invention as described above in claim 507, including the insect eggs are collected form the breeding material as recited in present claim 508; and the breeding material is removed from the breeding stage as recited in present claim 510 (corresponding to the sponge being removed from the well to collect eggs and the sponge being replaced daily) (Courtright [0030]).
Response to Arguments
Claim Objections: Applicant amended claim 394 to address the objection as written in the previous Office Action. However, claim 394 remains objected to for the reason provided above.
Claim Rejections – 35 U.S.C. §112(b) of claim 397: Applicant amended the claim to address the rejection as written in the previous Office Action. However, claim 397 remains rejected for the reason provided above.
Claim Rejections – 35 U.S.C. §102(a)(1) of claims 253 and 368 over Araneda: Applicant’s amendments have been fully considered and are considered to overcome the anticipation rejection. Therefore, the anticipation rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Gandelman and Makkar. Applicant’s arguments regarding Araneda (Applicant’s Remarks, page 1, section I- page 2, section II; pages 2-3, section VI) are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Claim Rejections –35 U.S.C. §103 of claims 393-397 over Araneda and Pastor: Applicant’s arguments regarding Araneda and Pastor (Applicant’s Remarks, page 1, section I- page 2, section II; pages 2-3, section VI) are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant’s Assertions of (1) Secondary Consideration in the form of Industry Adoption and Commercial Relevance; and (2) Technical Correspondence to the Claimed Invention: Applicant stated that the claimed invention corresponds to modern industrial insect product systems that have emerged following the priority date of the present invention as demonstrated by the provided literature in the form of the 2025 Annual Report from Darling Ingredients, Inc. and job descriptions from EnviroFlight® (Applicant’s Remarks, page 2, sections III-IV; page 3, section VIII).
However, the provided documents do not mention an insect breeding/production method at all, let alone disclose the claimed method. Therefore, it is not possible to determine whether the industry adopted the presently claimed method. As such, Applicant’s arguments are unsupported and thus unpersuasive.
Applicant’s Assertion of Long-Felt Need and Development of the Industry: Applicant argued that the present invention introduces reproductive life cycle integrated into production; the ability to sustain generations of insect populations; and coordination between breeding and production systems wherein the insect production systems prior to the priority date of the present invention were generally limited to linear growth and harvest process (Applicant’s Remarks, page 2, section V).
However, “Establishing long-felt need requires objective evidence that an art recognized problem existed in the art for a long period of time without solution. The relevance of long-felt need and the failure of others to the issue of obviousness depends on several factors. First, the need must have been a persistent one that was recognized by those of ordinary skill in the art. In re Gershon, 372 F.2d 535, 539, 152 USPQ 602, 605 (CCPA 1967) ("Since the alleged problem in this case was first recognized by appellants, and others apparently have not yet become aware of its existence, it goes without saying that there could not possibly be any evidence of either a long felt need in the . . . art for a solution to a problem of dubious existence or failure of others skilled in the art who unsuccessfully attempted to solve a problem of which they were not aware."); Orthopedic Equipment Co., Inc. v. All Orthopedic Appliances, Inc., 707 F.2d 1376, 217 USPQ 1281 (Fed. Cir. 1983) (Although the claimed invention achieved the desirable result of reducing inventories, there was no evidence of any prior unsuccessful attempts to do so.).
Second, the long-felt need must not have been satisfied by another before the invention by the inventor. Newell Companies v. Kenney Mfg. Co., 864 F.2d 757, 768, 9 USPQ2d 1417, 1426 (Fed. Cir. 1988) (Although at one time there was a long-felt need for a "do-it-yourself" window shade material which was adjustable without the use of tools, a prior art product fulfilled the need by using a scored plastic material which could be torn. "[O]nce another supplied the key element, there was no long-felt need or, indeed, a problem to be solved".)
Third, the invention must in fact satisfy the long-felt need. In re Cavanagh, 436 F.2d 491, 168 USPQ 466 (CCPA 1971).” MPEP §716.04.I.
Applicant has not provided objective evidence of a long-felt need which was recognized, persistent, and not solved by others. Therefore, Applicant’s arguments are not supported, and thus unpersuasive.
Conclusion
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.
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/KELLY P KERSHAW/Examiner, Art Unit 1791
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