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 .
Response to Amendment
In response to the amendment received 7/10/2026:
Claims 32-35, 38, and 40-50 are presently pending
Claims 42-50 are withdrawn
Claims 1-31, 36-37, 39, and 51-52 are cancelled
All prior art grounds of rejection are maintained, with new support only as necessitated by amendment
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 and 40-41 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 (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.
Stanislaw does not explicitly include an amount of water in the range of 35-65% as claimed. However, Stanislaw’s teaching of a range of less than 30 wt. % water and the instant claimed range of 35-65% water do not overlap but are close enough such that one skilled in the art would have expected them to have the same properties. Therefore, a prima facie case of obviousness exists in view of Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985), absent contrary evidence of criticality or non-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. % 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).
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 7/10/2026 have been fully considered but they are not persuasive.
Applicant argues that Stanislaw does not teach the amended water percentage of 35-65 wt. % water (Remarks Page 5). However, Stanislaw’s teaching of a range of less than 30 wt. % water and the instant claimed range of 35-65% water do not overlap but are close enough such that one skilled in the art would have expected them to have the same properties. Therefore, a prima facie case of obviousness exists in view of Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985), absent contrary evidence of criticality or non-obviousness. See MPEP 2144.05. Applicant argues that this water content provides a specific functional benefit; however, the benefit appears to apply when the water content is in the broader range of 10%-65%, rather than solely in the claimed range (Remarks at the top of Page 6). As such, this does not amount to contrary evidence of criticality of the range.
For at least the foregoing reasons, Applicant’s arguments are not found persuasive and the prior art grounds of rejection are maintained.
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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/H.E.R./ Examiner, Art Unit 1731
/AMBER R ORLANDO/Supervisory Patent Examiner, Art Unit 1731
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