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 .
Claims 1-12, 16 and 17 are pending in this application and were examined on their merits.
The objection to the Specification because the Title was not descriptive has been withdrawn due to the Applicant’s amendments to the Specification filed 07/03/2025.
The rejection of Claim 4, 5, 6, 12, 16 and 17 under 35 U.S.C. § 112(b) or 35 U.S.C. § 112 (pre-AlA), 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inventor (or for applications subject to pre-AlA 35 U.S.C. 112, the applicant), regards as the invention, has been withdrawn due to the Applicant’s amendments to the claims filed 07/03/2025.
The rejection of Claims 3, 4 and 11 under 35 U.S.C. § 112(d) or pre-AlA 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limitations of the claim upon which it depends, has been withdrawn due to the Applicant’s amendments to the claims filed 07/03/2025.
Claim Interpretation
Claims 5, 6, 12, 16 and 17 are drawn to product by process limitations wherein
the product (crop protection agent meal or powder comprising chitin-containing
Hermetia Illucens particles) is obtained by the process steps of Claims 5, 6, 12, 16 and
17. The claims are being construed consistent with the MPEP at 2113, I. and Il.
The Examiner notes that Claims 5 and 12 contain optional steps. The broadest,
reasonable interpretation of the limitation is that the optional steps do not occur.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-7, 9-12, 16 and 17 are newly rejected under 35 U.S.C. § 102(a)(1) as being anticipated by Vickerson et al. (US 2016/0219887 A1), of record, as necessitated by Applicant’s amendment to Claim 1 filed 07/03/2025.
Vickerson et al. teaches applying to soil in which a crop is grown or to an agricultural crop, an effective amount of black soldier fly/BSF (Hermetia Illucens) frass (Pgs. 1-2, Paragraph [0007]);
wherein the frass is used for nutritional and insect pest control activity in soils and/or on foliage (Abstract);
the reference additionally teaches pulverizing (thus producing a powder or meal, see Specification as filed at Pg. 5, Lines 19-21) frass (spent feedstock/rearing substrate comprising excrement of insect larvae, dead eggs, larvae, pupae and adults and chitin, from Black Soldier Fly (BSF) aka Hermetia Illucens (Pg. 2, Paragraph [0009] and Pg. 7, Paragraphs [0068]-[0069]), and reading on Claims 1, 2, 3, 4, 9, 10 and 11.
The reference further teaches application of the frass at about 5 tons per hectare or 8% dry weight frass to dry weight frass plus soil (Pg. 2, Paragraph [0009]).
With regard to the preamble of Claim 1, “Method for use in treating an agricultural or horticultural crop”, this is a statement of the purpose or intended use of the invention which does not result in a manipulative difference between the method of the prior art and that of the claimed method. See the MPEP at 2111.02, Il.
With regard to the limitation of Claim 1; “comprising controlling thrips pest” and
Claim 7; “for preventing and/or combating infestation of said agricultural or horticultural crop by Frankliniella occidentalis”, these would be inherent features of the prior art whom teaches the same method using the same crop protection agent as claimed. Therefore, the same results and effects as claimed would be expected, even if not recognized by the prior art. See the MPEP at 2112, I and II.
With regard to Claims 5, 6, 12, 16 and 17, these limitations have been interpreted under product-by-process as set forth in the Claim Interpretation above. The pulverized, chitin-containing BSF of the prior art appears to be substantially identical to the claimed crop protection product, even if produced by a different method. See the MPEP at 2113, I. and Il.
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) 1-12, 16 and 17 are newly rejected under 35 U.S.C. § 103 as being
unpatentable over Vickerson et al. (US 2016/0219887 A1), of record as necessitated by Applicant’s amendment to Claim 1 filed 07/03/2025.
The teachings of Vickerson et al. were discussed above.
Vickerson et al. did not teach a method wherein the crop protection agent is
applied at a level of at least 70 g/kg soil, as required by Claim 8.
It would have been obvious to those of ordinary skill in the art to modify the method of Vickerson et al. of applying pulverized, chitin-containing black soldier fly (Hermetia Illucens) frass to crops or soil in which a crop is grown to apply the frass at a concentration of at least 70 g/kg soil because the ordinary artisan would recognize that the determination of optimal ranges or amounts of a result-effective variable by routine experimentation is not inventive. In this instance, the BSF of Vickerson et al. is known to provide nutrition and insect pest control activity in soils and/or on foliage therefore constituting a known, result-effective variable. See the MPEP at 2144.05 Il. B. Vickerson et al. further teaches application of the frass at about 5 tons per hectare or 8% dry weight frass to dry weight frass plus soil (Pg. 2, Paragraph [0009]), providing a starting concentration which the ordinary artisan can manipulate by routine experimentation and optimization to determine the optimal concentration to achieve the desired results. Those of ordinary skill in the art would have been motivated to make this modification in order to provide both plant nutrition and insect pest control to plant crops.
There would have been a reasonable expectation of success in making this modification because Vickerson et al. teaches that the concentration of the BSF is a result-effective variable and the determination of the effective concentration of BSF applied to soil and/or crop foliage by routine experimentation and optimization would have been within the purview of those of ordinary skill in the art prior to the invention.
Response to Arguments
Applicant’s arguments, see Remarks, filed 07/03/2025, with respect to the above withdrawn objection/rejections have been fully considered and are persuasive.
Applicant's arguments filed 07/03/2025 have been fully considered but they are not persuasive with regard to the pending rejections herein.
The Applicant argues that Vickerson allegedly does not teach applying a crop protection agent comprising a meal or powder produced from a spent Hermetia Illucens rearing substrate. Applicant asserts that Vickerson teaches application of BSF frass to soil/crops to reduce, inhibit or repel insects but alleges the frass does not contain any insect rearing substrate (Remarks, Pg. 7, Lines 20-30 and Pg. 8, Lines 1-13).
This is not found to be persuasive for the following reasons, the claims refer to a “rearing substrate”, lacking a definition in the disclosure the term has been construed as any substrate that insects are grown on. Paragraph [0009] of Vickerson indicates that “frass” is generally understood to refer whatever is left behind by adults, larvae, pupae and eggs (e.g. stages of sub-adulthood) of BSF, including indigestible material (i.e., from feed/substrate) which the insects are grown/reared on. Vickerson additionally teaches pulverizing the frass thus producing a powder or meal. Therefore, the reference clearly anticipates the claimed limitation.
The Applicant argues that the claim amendments move limitations from the preamble into the body of the claim (Remarks, Pg. 8, Lines 14-22).
This is not found to be persuasive for the following reasons, as discussed above, with regard to the preamble of Claim 1, “Method for use in treating an agricultural or horticultural crop”, this is a statement of the purpose or intended use of the invention which does not result in a manipulative difference between the method of the prior art and that of the claimed method. See the MPEP at 2111.02, Il. With regard to the limitation of Claim 1; “comprising controlling thrips pest”, this would be inherent feature of the prior art whom teaches the same method using the same crop protection agent as claimed. Therefore, the same results and effects as claimed would be expected, even if not recognized by the prior art. See the MPEP at 2112, I and II.
Applicant argues that Vickerson is allegedly concerned with control of wireworm and other Coleopteran pests through use of BSF frass, which are unrelated to the claimed Thrips pest. Applicant notes that Vickerson would not inherently control Thrips as treatment efficacy against one type of pest does not mean the treatment will be effective against another pest type (Remarks, Pg. 9, Lines 3-19).
This is not found to be persuasive for the following reasons, the Examiner notes that the Abstract of Vickerson states:
Apparatus and methods are provided for producing insecticidal black soldier fly (BSF; Hermetia illucens) frass, and using the frass for nutritional and insect pest control activity in soils and/or on foliage.
Thus, while the reference may disclose embodiments and preferred examples drawn to the control of particular pests, the disclosure is not limited to those embodiments and encompasses control of other insect pests. See the MPEP at 2123, I. As discussed above, with regard to the limitation of Claim 1; “comprising controlling thrips pest”, this would be inherent feature of the prior art whom teaches the same method using the same crop protection agent as claimed. Therefore, the same results and effects as claimed would be expected, even if not recognized by the prior art. See the MPEP at 2112, I and II.
The Applicant argues that the concentration of BSF frass used for control of Coleopteran pests, such as wireworms, was allegedly not a result-effective variable for Thrips control (Remarks, Pg. 10, Lines 7-23).
This is not found to be persuasive for the following reasons, as discussed above, it would have been obvious to those of ordinary skill in the art to modify the method of Vickerson et al. of applying pulverized, chitin-containing black soldier fly (Hermetia Illucens) frass to crops or soil in which a crop is grown to apply the frass at a concentration of at least 70 g/kg soil because the ordinary artisan would recognize that the determination of optimal ranges or amounts of a result-effective variable by routine experimentation is not inventive. In this instance, the BSF of Vickerson et al. is known to provide nutrition and insect pest control activity in soils and/or on foliage therefore constituting a known, result-effective variable. See the MPEP at 2144.05 Il. B. Vickerson et al. further teaches application of the frass at about 5 tons per hectare or 8% dry weight frass to dry weight frass plus soil (Pg. 2, Paragraph [0009]), providing a starting concentration which the ordinary artisan can manipulate by routine experimentation and optimization to determine the optimal concentration to achieve the desired results. Those of ordinary skill in the art would have been motivated to make this modification in order to provide both plant nutrition and insect pest control to plant crops.
The Applicant argues that there would not be a reasonable expectation of success in controlling Thrips pest due to their biological differences from the pests of Vickerson (Remarks, Pg. 10, Lines 24-28).
This is not found to be persuasive for the following reasons, as discussed above, with regard to the limitation of Claim 1; “comprising controlling thrips pest”, this would be inherent feature of the prior art whom teaches the same method using the same crop protection agent as claimed. Therefore, the same results and effects as claimed would be expected, even if not recognized by the prior art. See the MPEP at 2112, I and II. The Examiner notes there is no requirement of a “reasonable expectation of success” in an anticipation rejection.
The Applicant alleges “unexpected results”, citing Example 2 of the disclosure wherein BSF substrate was added to plant soil in different percentages and 10% was shown to be the most effective against Thrips pest numbers and leaf discoloration (Remarks, Pg. 10, Lines 29-30 and Pg. 11, Lines 1-11).
This is not found to be persuasive for the following reasons, as discussed above, with regard to the limitation of Claim 1; “comprising controlling thrips pest”, this would be inherent feature of the prior art whom teaches the same method using the same crop protection agent as claimed. Therefore, the same results and effects as claimed would be expected, even if not recognized by the prior art. See the MPEP at 2112, I and II. The Examiner notes that an allegation of “unexpected results” cannot be used to overcome an anticipation rejection.
The Applicant cites the Inventor’s statement that they do not know of any other use of insect farming byproduct use for soil treatment (Remarks, Pg. 11, Lines 12-16).
This statement is irrelevant as Vickerson clearly demonstrates the use of farmed BSF substrate as a soil treatment prior to the instant invention.
Conclusion
No claims are allowed.
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 PAUL C MARTIN whose telephone number is (571)272-3348. The Examiner can normally be reached Monday-Friday 12pm-8pm EST.
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, Sharmila G Landau can be reached at (571) 272-0614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PAUL C MARTIN/ Examiner, Art Unit 1653
/SHARMILA G LANDAU/ Supervisory Patent Examiner, Art Unit 1653