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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 June 25, 2026 has been entered.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on March 3, 2026 was filed after the mailing date of the Office Action mailed on December 29, 2025. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claim 39 is objected to because of the following informalities:
Claim 39 recites the limitation “less than 1.3 meg/kg fat” in line 3. It appears the units have a typographical error. It appears the claim should recite “less than 1.3 meq/kg fat” in order to maintain consistency with the units of meq/kg fat disclosed in the column “Peroxide value (meq/kg)” of Table 8 of applicant’s specification.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 44 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 44 recites the limitation “wherein the heat treated black soldier fly larvae pulp has not been subjected to a physical separation step to separate the fat, protein, and solids into distinct fractions” in lines 1-3. The disclosure at the time of filing does not adequately describe any embodiment in which the heat treated black soldier fly larvae pulp has not been subjected to a physical separation step to separate the fat, protein, and solids into distinct fractions. In fact, the disclosure recites the method comprising a step of subjecting the heated and hydrolysed pulp to a physical separation step thereby obtaining a fat fraction, an aqueous protein fraction, and a solid containing fraction (Specification, Page 3, lines 6-8). Therefore, this limitation constitutes new matter.
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 27-28, 34-39, 41-42, and 44 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 pre-AIA the applicant regards as the invention.
Claim 27 recites the limitation “the average particle size” in line 6. There is insufficient antecedent basis for this limitation in the claim.
Claim 27 recites the limitation “the remains” in line 6. There is insufficient antecedent basis for this limitation in the claim.
Claim 27 recites the limitation “the insects” in line 6. There is insufficient antecedent basis for this limitation in the claim.
Claim 36 recites the limitation “an average particle size of remains” in line 2. It is unclear if this refers to “the average particle size of the remains of the insects” recited in Claim 27, line 6 or to an entirely different average particle size.
Claim 38 recites the limitation “an insect pulp” in line 2. It is unclear if this refers to “a black soldier fly larvae pulp” recited in Claim 27, lines 1-2 or to an entirely different insect pulp. For purposes of examination Examiner interprets the claims to refer to the same black soldier fly larvae pulp.
Claim 38 recites the limitation “the average particle size” in line 7. There is insufficient antecedent basis for this limitation in the claim.
Claim 38 recites the limitation “the remains” in line 7. There is insufficient antecedent basis for this limitation in the claim.
Claim 38 recites the limitation “the insects” in line 7. There is insufficient antecedent basis for this limitation in the claim.
Clarification is required.
Claims 28, 34-35, 37, 39, 41-42, and 44 are rejected as being dependent on a rejected base claim.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 36 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 36 recites the limitation “wherein an average particle size of remains of the black soldier fly larvae in the pulp range between 10 and 500 microns” in lines 2-3. Claim 27, lines 6-7 already recites the limitation “wherein the average particle size of the remains of the insects in the heat treated pulp range between 10 and 500 microns.” The average particle size of Claim 36 recites the same average particle size of independent Claim 27. Therefore, Claim 36 fails to further limit Claim 27.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 27, 35-38, 41-42, and 44 are rejected under 35 U.S.C. 103 as being unpatentable over Dossey US 2015/0132433 in view of Aman NL 2025546 and JP 2009/254348 (cited on Information Disclosure Statement filed February 6, 2024).
It is noted that a machine translation of JP 2009/254348 has been attached herein. All citations with respect to JP 2009/254348 are with respect to the machine translation of JP 2009/254348.
Regarding Claims 27 and 38, Dossey discloses a feed ingredient (‘433, Paragraph [0002]) comprising a black soldier fly larvae pulp (‘433, Paragraph [0017]) comprising a heat treated black soldier fly larvae pulp which has been subjected to a heat treatment (‘433, Paragraphs [0051]-[0052]) wherein the heat treatment is at a temperature of approximately 54.4-93.3°C (‘433, Paragraph [0053]), which overlaps the claimed heat treatment temperature of 60°C-95°C. The heat treated black soldier fly larvae pulp comprises fat (‘433, Paragraph [0025]), protein (‘433, Paragraph [0024]), and solids (‘433, Paragraphs [0032] and [0056]) wherein about 90% of the solid insect matter particles has a particle size of about 100 µm or less (‘433, Paragraph [0020]), which overlaps the claimed average particle size of the remains of the insects in the heat treated pulp range between 10 and 500 microns. Where the claimed heat treatment temperature and average particle size ranges overlaps heat treatment temperature and average particle size ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Dossey is silent regarding the heat treated black soldier fly larvae pulp having a free fatty acid content of less than 1.0%.
Aman discloses a feed product or a feed ingredient (‘546, Page 19, lines 20-26) comprising a black soldier fly larvae pulp comprising a heated black soldier fly larvae pulp which has been subjected to a heat treatment (‘546, Page 4, lines 18-26) wherein the heat treatment is for 80 seconds at 90°C (‘546, Page 16, lines 1-3), which falls within the claimed heat treatment time of 50-100 seconds at the claimed temperature of 60°C-95°C. The enzymatic hydrolysis in the hydrolyzed protein/peptidase solution is terminated by heating the hydrolysed protein/peptidase solution to a temperature of 80°C-105°C for 1.5 minutes – 8 minutes (‘546, Page 11, lines 7-18) wherein the crude fat content is 0.3% by weight based on the total weight of the larvae water (‘546, Page 24, lines 17-20), which falls within the claimed pulp having a free fatty acid content of less than 1.0%. Aman also discloses the black soldier fly larvae meat is minced as a source of a water soluble insect protein composition (‘546, Page 4, lines 18-26).
Both Dossey and Aman are directed towards the same field of endeavor of feed ingredients. Both feed ingredients of Dossey and Aman are made of black soldier fly larvae pulp that is minced to a small size. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the feed ingredient of Dossey and conduct the heat treatment of the black soldier fly pulp such that the pulp has a free fatty acid content of less than 1.0% as taught by Aman since where the claimed free fatty acid content of the pulp ranges overlaps free fatty acid content of the pulp ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Further regarding Claims 27 and 38, Dossey discloses the insect product being used in a wide variety of products including food products, animal feed, and nutraceutical ingredients such as omega fatty acids and enzymes (‘433, Paragraph [0031]). Aman discloses the insect protein comprising a step of heating the insect protein mixed with at least one peptidase and enzymatically hydrolyzing the at least one peptidase and terminating the enzymatic hydrolysis in the hydrolyzed protein/peptidase solution by heating the hydrolyzed protein/peptidase solution to a temperature between 75°C-110°C such that the at least one peptidase is heat inactivated by the heating (‘546, Page 4, lines 1-17). However, Dossey modified with Aman is silent regarding the enzyme that is inactivated by the heat treatment to be intestinal SN-1,3-lipase.
JP 2009/254348 discloses a method for producing processed bee larvae food and beverages (‘348 Machine Translation, Paragraph [0001]) comprising the steps of heating a decomposition solution obtained by decomposing carbohydrates, inactivating the enzymes contained in the decomposition solution, and then filtering it (‘348 Machine Translation, Paragraph [0033]) wherein lipase is added to decompose the lipids in which lipase is activated to efficiently breakdown lipids to remove fatty deposits that form around the bee larva protein allowing for more efficient breakdown of the bee larva protein (‘348 Machine Translation, Paragraph [0019]) wherein lipase breaks down fats into substances such as fatty acids, glycerol, and unsaturated fatty acids and lipase enzyme is activated in solution at a temperature of 15 to 45°C to break down fats (‘348 Machine Translation, Paragraphs [0041]-[0042]) wherein the temperature of the solution is raised to 80°C to eliminate (inactivate) the acidity of the enzymes in the solution (‘348 Machine Translation, Paragraph [0104]). The lipase enzyme inactivation temperature of 80°C falls within the claimed heat treatment temperature of 60°C-95°C.
Both modified Dossey and JP 2009/254348 are directed towards the same field of endeavor of insect based food. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the insect based food of modified Dossey and inactivate lipase by heat treatment of the insects as taught by JP 2009/254348 in order to break down fats (‘348 Machine Translation, Paragraphs [0041]-[0042]). Although JP 2009/254348 does not explicitly disclose the lipase that is inactivated to be intestinal SN-1,3-lipase, JP 2009/254348 discloses generally inactivating lipase by heat treatment of insects. One of ordinary skill in the art would modify the feed of modified Dossey and inactivate any particular species of lipase desired by JP 2009/254348 in order to break down fats (MPEP § 2144.08.II.).
Further regarding Claims 27 and 38, the limitations “wherein the heat treatment is for 50-100 seconds at a temperature of 60°C-95°C” are product by process limitations. Even though product by process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product by process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process in view of In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (MPEP § 2113.I.). Nevertheless, Dossey discloses the insect slurry being heated to a temperature in the range of approximately 54.4-93.3°C (‘433, Paragraph [0053]), which overlaps the claimed heat treatment temperature of 60°C-95°C. Dossey also discloses the temperature may be applied to various time intervals such as seconds depending on the type of equipment utilized (‘433, Paragraph [0053]). Aman discloses heat treatment of the insect pulp to last for between 50 seconds and 120 seconds (‘546, Page 15, lines 17-40) at a heating temperature of 80°C-95°C (‘546, Page 16, line 1), which overlaps the claimed heat treatment time of 50-100 seconds and the claimed heat treatment temperature of 60°C-95°C. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food and obtain the insect pulp by heating at the claimed temperature range as taught by Dossey and Aman for the claimed heating time as taught by Aman since where the claimed heating temperature ranges overlaps heating temperature ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Additionally, Dossey discloses heating the insect slurry at temperature than overlap the claimed heating temperatures for various time intervals depending on the type of equipment utilized in the heating step (‘433, Paragraph [0053]). Given that Claims 27 and 38 recite a generic heating step and does not specify the particular equipment used or the type of heating used in the product by process limitations, one of ordinary skill in the art would adjust the heating time in which black soldier fly is heated of the process of Dossey et al. based upon the type of equipment and heating process used for preservation purposes as taught by Dossey. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the time of the process by which the food derived from insect pulp is heated to fall within the claimed time durations since differences in heating time will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such heating time is critical. 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Regarding Claim 35, Dossey discloses the black soldier fly larvae pulp (‘433, Paragraph [0017]) being prepared by mincing (wet grinding) the black soldier fly larvae (‘433, Paragraphs [0035] and [0066]). Aman also discloses mincing the black soldier fly larvae (‘546, Page 4, lines 18-26).
Regarding Claim 36, Dossey discloses an average particle size of remains of the black soldier fly larvae in the pulp range being between from about 1 µm to about 100 µm (‘433, Paragraphs [0020] and [0035]), which overlaps the claimed average particle size of between 10 and 500 microns. Where the claimed average particle size ranges overlaps average particle size ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Regarding Claim 37, Dossey discloses the feed ingredient being pet food (animal feed) (‘433, Paragraph [0031]). Aman also discloses the feed ingredient being pet food (‘546, Page 19, lines 20-26).
Regarding Claims 41-42, Dossey discloses the heat treatment is at a temperature of approximately 54.4-93.3°C (‘433, Paragraph [0053]), which overlaps the claimed heat treatment temperature of 75°C-95°C or 90°C. Where the claimed heat treatment temperature ranges overlaps heat treatment temperature ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Regarding Claim 44, Dossey discloses the heat treated black soldier fly larvae pulp not being subjected to a physical separation step to separate the fat, protein, and solids into distinct fractions since the insect product in made by wet grinding at least one whole adult insect into an insect slurry to form a product comprising solid insect matter particles (‘433, Paragraph [0032]) wherein the insect is black soldier fly (‘433, Paragraph [0017]).
Claims 28 and 39 are rejected under 35 U.S.C. 103 as being unpatentable over Dossey US 2015/0132433 in view of Aman NL 2025546 and JP 2009/254348 (cited on Information Disclosure Statement filed February 6, 2024) as applied to claim 27 above as further evidenced by Firmansyah et al. “Production of protein hydrolysate containing antioxidant activity from Hermetia illucens” (published June 21, 2019) (cited on Information Disclosure Statement filed March 15, 2022).
Regarding Claims 28 and 39, Dossey discloses an insect product including a composition derived from at least one whole insect (‘433, Paragraph [0010]) having a peroxide value of about 1 meq/kg of fat or less (‘433, Paragraph [0019]), which falls within the claimed feed having a level less than 1.3 meq/kg fat. Where the claimed meq/kg levels overlaps meq/kg levels disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in meq/kg levels will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such meq/kg levels is critical. 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Further regarding Claims 28 and 39, the limitations “wherein the food, feed, food ingredient, or feed ingredient comprises the heat treated black soldier fly larvae pulp which has antioxidant properties” are limitations with respect to the properties of the claimed food comprising the insect pulp. Where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). One of ordinary skill in the art would expect the food derived from insect pulp of Dossey to also have the same properties as claimed, e.g. have antioxidant properties, since Dossey et al. also teaches the claimed food comprising insect pulp. Additionally, Firmansyah et al. provides evidence that food derived from insects (BSFL, i.e. black soldier fly larvae) has antioxidant properties (Right Column, Page 3).
Claim 34 is rejected under 35 U.S.C. 103 as being unpatentable over Dossey US 2015/0132433 in view of Aman NL 2025546 and JP 2009/254348 (cited on Information Disclosure Statement filed February 6, 2024) as applied to claim 27 above in further view of Arsiawalla et al. US 2015/0374005.
Regarding Claim 34, Dossey modified with Aman and JP 2009/254348 is silent regarding the black soldier fly larvae being between 12 and 30 days of age.
Arsiwalla et al. discloses a food comprising insect pulp derived from insect larvae (‘005, Paragraphs [0017] and [0019]) wherein the insect pulp is derived from black soldier fly (‘005, Paragraphs [0018] and [0043]). Arsiwalla et al. also discloses the insects being in any developmental stage (‘005, Paragraph [0018]). Although Arsiwalla et al. does not explicitly state the developmental stage of the black soldier fly larvae to be between 12 and 30 days of age, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the days of age of the insects used in modified Dossey to be any developmental age as taught by Arsiwalla et al. since differences in the days of age of the insects will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such heating time is critical. 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Response to Arguments
Examiner notes that a new Claim Objection has been made.
Examiner notes that a new matter rejection under 35 USC 112(a) has been made in view of the amendments.
Examiner also notes that new indefiniteness rejections under 35 USC 112(b) have been made in view of the amendments.
Examiner also notes that a new rejection under 35 USC 112(d) has been made in view of the amendments.
Applicant’s arguments with respect to the previous obviousness rejections of Claim 27 under 35 USC 103(a) have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Papadoyianis et al. US 2008/0075818 discloses a method for producing a high protein insect meal for use as an animal feed.
Jozefiak et al. WO 2017/017635 discloses a feed ingredient comprising insect flour and/or protein chitin extracts of insect origin (‘635, Page 2, lines 26-29).
The prior art made of record, cited on a previous PTO-892 Notice of References Cited form, and not relied upon is considered pertinent to applicant's disclosure.
Cadesky US 2018/0310591 discloses a feed ingredient comprising a black soldier fly larvae pulp (‘591, Paragraph [0062]) comprising a heat treated black soldier fly pulp which has been subjected to a heat treatment wherein the heat treatment in a temperature range of about 65°C to about 90°C (‘591, Paragraph [0169]) wherein the insect milk is held at a temperature of at least about 90°C for about at least 2 minutes to destroy microorganisms and inactivate endogenous insect enzymes (‘591, Paragraph [0205]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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