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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 2/12/2026 has been entered.
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) 32-35, 38, 40-41, and 51-52 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stanislaw (Polish Patent No. 229206 B1) with reference to the machine translation provided 2/7/2025 (hereinafter “Stanislaw”).
Regarding claim 32, Stanislaw teaches a biomass composition (e.g., a fertilizer comprising shredded, dried and sterilized biomass [Abstract] comprising inspect particles or worm particles (e.g., insects and their larvae) [Page 6 Para. 7] (the source materials are ground up, and as such the insects will necessarily be in the form of particles) [Page 8 Para. 6], a vegetable biomass (e.g., aquatic plants or aquatic weed biomass [Page 6 Para. 6] or spent grains [Page 6 Para. 3]), and a liquid (e.g., the mass is dried to preferably below 30 wt. % humidity, which is water) [Page 8 Para. 6], wherein
the biomass composition comprises 0.01% - 25% insect particles by weight of the biomass composition (Stanislaw teaches a range of simple proteins in the final biomass product from 1 to 30 wt. % [Claim 1] and further teaches that the source of those compounds can be insects and their larvae [Claim 8]. Further, the insects themselves comprise up to 8 wt. % protein [Claim 8]. As such, one of ordinary skill in the art would readily appreciate that the insects added according to this disclosed protein content would be added in a variety of amounts which meet the claimed range. As an illustrative example selected only in order to demonstrate that Stanislaw meets the claimed range, the insects would be added in an amount providing 2% protein to the composition. Assuming that the insects themselves are 8% protein, this would result in the insects comprising 25 wt. % of the biomass composition, meeting the claimed range),
wherein the insect particles are particulate larvae (e.g., insects and their larvae) [Page 6 Para. 7] (the source materials are ground up, and as such the insects will necessarily be in the form of particles) [Page 8 Para. 6] having an average particle size of 3 mm – 40 mm (e.g., the source raw materials are ground into pulp measuring below 5 mm) [Page 8 Para. 6], and
wherein the liquid is water at an amount of 0.5% - 70% by weight of the biomass composition (e.g., the mass is dried to preferably below 30 wt. % humidity, which is water) [Page 8 Para. 6].
Note that similar or overlapping ranges create a prima facie case of obviousness. See MPEP 2144.05.
Regarding claim 33, Stanislaw teaches the biomass composition wherein the vegetable biomass is one or more of a grain or a flour of grain or a constituent thereof, a tuber of a root vegetable or parts or a constituent thereof, wood such as saw dust, shredded branches, a fruit, a vegetable, a crop, a plant, or a fragment, constituent or part thereof (e.g., aquatic plants or aquatic weed biomass) [Page 6 Para. 6] or spent grains [Page 6 Para. 3]).
Regarding claim 34, Stanislaw teaches the biomass composition wherein the grain is one or more of wheat, maize, corn, soy, brain, rice, and/or wherein the tuber of a root vegetable is one or more of potato, cane or carrot (e.g., natural thickeners such as flour and residues from cane sugar processing may be added, here interpreted as reading on wheat and cane) [Page 15 Para. 1] (further, the composition can contain spent grains) [Page 6 Para. 3].
Regarding claim 35, Stanislaw teaches the biomass composition wherein the vegetable biomass comprises milled grain, particulate grain or grain flour with an average particle size of 0.1 mm – 4 mm (e.g., the composition can comprise spent grains [Page 6 Para. 3], and all the source raw materials are ground into pulp measuring less than 5 mm, preferably 1-2 mm) [Page 8 Para. 6].
Regarding claim 40, Stanislaw teaches the biomass composition having a dry matter content of 20 to 99 wt. % (the source raw material of the biomass from which the composition is made are compacted to more than 20% dry weight [Page 7 Para. 3], then the composition is further dried to less than 30 wt. %, preferably only 10 to 15 wt. % water, [Page 8 Para. 6] as such it necessarily follows that the final composition has a dry matter content of 20 to 99 wt. %).
Regarding claim 41, Stanislaw teaches the biomass composition further comprising any one or more of particulate insect excrements, insect feces, insect skin, insect eggs, insect pupae, insect prepupae, insect imago, adult insect or insect embryo (e.g., insects and their larvae [Page 6 Para. 7], here interpreted as necessarily reading on the various insect parts as claimed).
Regarding claim 51, Stanislaw teaches the biomass composition wherein the liquid is water at an amount of 10 wt. % - 70 wt. % of the biomass composition (e.g., the mass is dried to preferably below 30 wt. % humidity, which is water) [Page 8 Para. 6].
Regarding claim 52, Stanislaw teaches the biomass composition wherein the liquid is water at an amount of 20 wt. % - 70 wt. % of the biomass composition (e.g., the mass is dried to preferably below 30 wt. % humidity, which is water) [Page 8 Para. 6].
Claim(s) 38 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stanislaw as applied to claim 32 above, and further in view of "Study shows efficiency of BSF and bacteria for producing larvae as feedstuff and fertilizer," Einstein-Curtis, Aerin, Feed Navigator, 9/6/2018 (hereinafter “Einstein-Curtis”).
Regarding claim 38, Stanislaw teaches the biomass composition wherein the insect particles are larvae (e.g., insects and their larvae) [Page 6 Para. 7], but does not explicitly teach that the larvae are black soldier flies. However, Einstein-Curtis teaches that it is known in the fertilizer art to use black soldier fly larvae [Title & Page 2 Para. 1] in biomass compositions (e.g., compost) [Page 5 Para. 2]. Further, black soldier fly larvae are particularly advantageous because they generate antimicrobial activity against pathogens in waste [Page 4 Para. 3]. Further, they reduce bad odors [Page 4 Para. 4]. As such, in selecting insect larvae to use in the biomass composition of Stanislaw, one of ordinary skill in the art would look to Einstein-Curtis and know that black soldier fly larvae are not only known and acceptable but also advantageous. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include black soldier fly larvae as taught by Einstein-Curtis as the insect larvae in the biomass composition of Stanislaw.
Response to Arguments
Applicant's arguments filed 2/12/2026 have been fully considered but they are not persuasive.
Applicant argues that Stanislaw does not teach the insect particle percentage because Stanislaw refers to protein content ranges, not insect particle ranges (Remarks Page 5). However, Stanislaw provides a conversion between these two measurements: Stanislaw teaches a range of simple proteins in the final biomass product from 1 to 30 wt. % [Claim 1] and further teaches that the source of those compounds can be insects and their larvae [Claim 8]. Insects themselves comprise up to 8 wt. % protein [Claim 8]. As such, Stanislaw teaches a range of insect particle percentages overlapping with the claimed range.
Stanislaw provides for the insects and their larvae as an option to supply the biomass source, and even regards the insects as being one of the most desirable natural raw materials for the fertilizer [Page 8 Para. 4]. Stanislaw appears to supply a list of possible sources of biomass, but does not appear to require require each and every biomass source option to be present in the fertilizer (see, e.g., Page 7 Para. 3). As such, Stanislaw is still regarded as reading on the insect particle range despite the possible inclusion of other protein sources.
Applicant further argues that Stanislaw does not teach the claimed particle size range of 3 mm – 40 mm (Remarks Page 6). However, Stanislaw teaches that the raw materials are ground up to dimensions below 5 mm, overlapping with the claimed range. Stanislaw includes that a preferable particle size is 1-2 mm; however, disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). "A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994). See MPEP 2123. As such, Stanislaw’s broader disclosure of less than 5 mm is still regarded as rendering the claimed range obvious. The application of coatings would not change the particle size of the actual insect particles, as alleged by Applicant (Remarks Page 6). Further, the application of a coating would only make the overall particle slightly larger, and thus still within the claimed range.
Applicant further argues that Stanislaw does not teach the claimed water content of 0.5 to 70 wt. % (Remarks Page 6). However, Stanislaw teaches that the mass is dried to preferably below 30 wt. % humidity, preferably 10 to 15 wt. % [Page 8 Para. 6]. As such, Stanislaw is regarded as rendering the claimed range prima facie obvious. Applicant argues that the specific water content claimed has a specific functional purpose, specifically when the water content is 10-65 wt. %. First, it is noted that 10-65 wt. % is not the range claimed in claim 1. Further, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). Here, Stanislaw suggests a range overlapping with the claimed range, and the fact that the inventor has identified that this water content serves a specific functional purpose is not considered to be a basis for patentability.
Applicant also appears to point to the advantage that the claimed composition does not implement whole carcasses (Remarks Page 7); however, neither does the composition disclosed by Stanislaw, as Stanislaw also teaches that the biomass sources are ground up.
For at least the foregoing reasons, Applicant’s arguments are not found persuasive and the prior art grounds of rejection are maintained.
Conclusion
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/H.E.R./ Examiner, Art Unit 1731
/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731