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 .
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 (i.e., changing from AIA to pre-AIA ) 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, 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 2, 4, 12, and 15-18 are rejected under 35 U.S.C. 102(a)(1) as obvious over US 2019/0343148 (Peyrichou) in view of US 2004/0228947 (Wiggins) as evidenced by Sun, “Wheat Bran Protein Improves Lipid Metabolism by Down regulating the Amount of HMG-CoA Reductase in the Liver of High-Fat Diet-Fed Rats”, Journal of Food Biochemistry (2023) for claims 16-18.
Peyrichou teaches a nutrition regime for insects comprising a feed and a gel. Specifically, Peyrichou gives examples of wheat bran and solubles from wheat originating starch extraction, and solubles from wheat originating from starch extraction, mixed with solubles and yeasts from distillation. Examples of maize germ cake and wet maize fibers are also given which are solids (0255-0278]. As seen in Tables 6, mixtures of bran (solid plant co-product) WBA and SBA (solubles from wheat originating from starch extraction), maize germ cake and wet maize fibers are combined in example A3 with a moisture content of 52%. Moreover, Peyrichou states that the substrate A3 is a “wet substrate” and therefore is considered to be semi-liquid and lumpy due to the presence of fibers and cake in combination with solubles.
Also, example A5 from Table 6 includes a gel (semi-liquid) combined with solids of wheat-bran, maize cake and maize fibers.
Further, Table 7, example B3 mixes bran and solubles with a moisture content of 56%. As with A3 above, the mixture of solids and solubles is considered to render the material lumpy to at least some degree and the amount of moisture is considered to render it semi-liquid.
Still further, example B4 of Table 7 mixes bran, solubles and gel. The presence of gel is also considered to be semi-liquid and the material is considered lumpy to at least some extent.
Regarding the limitation of homogeneous, Peyrichou does not expressly disclose forming a homogenous material. Wiggins discloses an insect larval rearing media comprising soy fiber, wheat germ and gelling agents (abstract, [0009, 0017-19]). One of ordinary skill would have found it obvious to provide a uniform mixture (i.e. homogenous) to ensure the materials are provided in a uniform manner throughout the layer of nutrient formed and provide a uniform distribution of the nutrient materials.
Regarding claim 2, distilled grains and solubles are derived from starch.
Regarding claims 4 and 12, the solid plant co-products may be wheat (wheat bran) which is a wheat by-product. Maize germ cakes are also taught. The limitation “centrifugation” is a process of making limitation and does not structurally distinguish one cake from another.
Regarding claim 15, wheat bran and grains contain protein, lipids and carbohydrates.
Regarding claims 16-18, Sun provides evidence that wheat bran provides 16-19% starch (carbohydrates), 14-18% protein, and 3-6% lipids on a dry matter basis (Introduction). These values fall within the ranges claimed. In example B4, the wheat bran is the source of solids.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0343148 (Peyrichou) in view of US 2004/0228947 (Wiggins) as evidenced by Sun, as applied to claim 1 above and further in view of JP 2016-149944 (Nogami) and “Nutritional values of chironomid larvae grown in palm oil mill effluent and algal culture”, Aquaculture (1997) (Habib).
Peyrichou teaches an insect growth material that may include solubles such as distilled grain solubles. Peyrichou does not expressly teach the use of palm mill effluents (POME) solubles. Nogami teaches a treatment method of oil palm that can use the POME by-product as edible foods such as feeds which provides a better use of the waste material and prevents pollution (Industrial applicability). Additionally, Habib expressly teaches that POME can be used to grow chironomid larvae and showed that POME contained higher amino acid concentration as compared to algae and induced a higher production of larvae and a high-quality live food for the aquaculture industry (abstract). It would have been obvious to substitute POME as taught by Nogami and Habib for the solubles of Peyrichou with a reasonable expectation of successfully providing a nutrient in soluble form that provides a good source of amino acids and is known to provide a good means for growth and food for larvae as recognized by Nogami and Habib.
Claims 5, 6, 13 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0343148 (Peyrichou) in view of US 2004/0228947 (Wiggins) as evidenced by Sun as applied to claims 1 and 4 above and further in view of US 4,840,800 (Harris).
Peyrichou teaches a nutrition regime as discussed above and gives an example with 52% water but does not expressly disclose a range of water. Harris teaches insect rearing media comprising solid plant co-products such as soybean fiber and wheat germ, and nutrients (vitamins) (col. 1, lines 44-55). The soybean fiber is used as a gelling agent and the high amount of water is considered to meet the required semi-liquid limitation. Also, the presence of solids such as wheat germ and brewers yeast are considered to render the material at least somewhat lumpy. Harris states that insect larvae usually require rearing media containing from 70-90% water, giving examples of Test Media 1 with 75% and Test Media 2 with 80% (col. 2, lines 14-18). Based upon the teachings of Harris that it is known that insect larvae usually require rearing media containing from 70-90% water, it would have been obvious to provide the water of Peyrichou in commensurate amounts with a reasonable expectation of still providing a material capable of providing nutrients to insects and provide the acceptable amount of water for the purpose of rearing according to Harris. Also, Harris recognizes that nutrients will vary according to the species being reared which can be adjusted by adjusting the amount of water, thus one of ordinary skill would have found it obvious to adjust the nutrient amount by varying the water content.
Regarding claim 6, the water content is the inverse of the dry matter content.
Claims 1-6, and 12-15 are rejected under 35 U.S.C. 103 as being unpatentable over US 4,840,800 (Harris) in view of JP 2016-149944 (Nogami) and “Nutritional values of chironomid larvae grown in palm oil mill effluent and algal culture”, Aquaculture (1997) (Habib).
Regarding claims 1-4, 12 and 15, Harris teaches insect rearing media comprising solid plant co-products such as soybean fiber and wheat germ, and nutrients (vitamins) (col. 1, lines 44-55). The soybean fiber is used as a gelling agent and the high amount of water is considered to meet the required semi-liquid limitation. The wheat germ is considered a solid plant co-product. Also, the presence of solids such as wheat germ and brewers yeast are considered to render the material at least somewhat lumpy. Wheat germ includes fat, protein and carbohydrate. Regarding the limitation of “homogeneous”, Harris discloses mixing the ingredients in a high-speed blender (col. 2, lines 56-63) which is seen to impart a degree of homogeneity to the media.
Harris does not expressly teach the presence of plant processing solubles. Nogami teaches a treatment method of oil palm that can use the POME by-product as edible foods such as feeds which provides a better use of the waste material and prevents pollution (Industrial applicability). Additionally, Habib expressly teaches that POME can be used to grow chironomid larvae and showed that POME contained higher amino acid concentration as compared to algae and induced a higher production of larvae and a high-quality live food for the aquaculture industry (abstract). It would have been obvious to add POME as taught by Nogami and Habib as a nutrient of Harris with a reasonable expectation of successfully providing a nutrient in soluble form that provides a good source of amino acids and is known to provide a good means for growth and food for larvae as recognized by Nogami and Habib.
Regarding claims 5 and 13, Harris states that insect larvae usually require rearing media containing from 70-90% water (col. 2, lines 14-18) giving examples of Test Media 1 with 75% and Test Media 2 with 80%.
Regarding claims 6 and 14, the dry matter content is the inverse of the water content.
Claims 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over US 4,840,800 (Harris) in view of JP 2016-149944 (Nogami) and “Nutritional values of chironomid larvae grown in palm oil mill effluent and algal culture”, Aquaculture (1997) (Habib) as applied to claim 1 above and further in view of US 2008/0152781 (Dreese).
Regarding claims 19 and 20, Harris does not specify whether the wheat germ is coarse (uncompacted) or fine (compacted). Dreese teaches wheat material and that examples of wheat material include coarse, fine, or partially milled such as milled wheat bran, milled wheat germ, milled endosperm or a combination. Given that there are only two possible selections and either selection is known to one of ordinary skill in the art and their selection would be expected to affect texture, absent some showing that a selection of one or the other provides an unpredictable effect, it would have been obvious to one of ordinary skill to select either compacted wheat germ or uncompacted wheat germ and expect the formed insect rearing media to be effective regardless of which selection is made.
Claims 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0343148 (Peyrichou) in view of US 2004/0228947 (Wiggins) as evidenced by Sun as applied to claim 1 above and further in view of US 2008/0152781 (Dreese).
Regarding claims 19 and 20, Peyrichou does not specify whether the wheat bran is coarse (uncompacted) or fine (compacted). Dreese teaches wheat material and that examples of wheat material include coarse, fine, or partially milled such as milled wheat bran, milled wheat germ, milled endosperm or a combination. Given that there are only two possible selections and either selection is known to one of ordinary skill in the art and their selection would be expected to affect texture, absent some showing that a selection of one or the other provides an unpredictable effect, it would have been obvious to one of ordinary skill to select either compacted wheat germ or uncompacted wheat germ and expect the formed insect rearing media to be effective regardless of which selection is made.
Response to Arguments
Applicant’s amendment to claim 12 has overcome the objection thereto.
Applicant’s amendment to claim 1 has overcome the 102 rejections over Syriat, Mathieu and Peyrichou.
However, upon further consideration, a new ground(s) of rejection is made over Peyrichou in view of Wiggins.
Regarding Peyrichou, applicant argues that the moisture levels are suitable in Peyrichou only because the water is immobilized in a rigid gel network and if the same amounts were instead present as free liquid in Peyrichou’s predominantly dry insoluble substrate, the larvae would be at risk of drowning. The instant claims refer to “semi-liquid” and the material disclosed by Peyrichou may contain an amount of water that is considered to render the material semi-liquid. The claims and instant specification do not provide a definition of semi-liquid and do not require any particular flowability of the material. Thus, Peyrichou is seen to disclose a semi-liquid inasmuch as the term is limited.
Applicant argues that in the instant application “lumpy” refers to the semi-liquid or pasty matrix obtained by combining plant-processing solubles with granular solid plant co-products to yield a homogeneous composition without visible free water. The instant claims do not refer to “without visible free water”. Also, the term lumpy is not defined and it appears that this argument refers to the rest of claim 1 to define “lumpy”. As explained above, “semi-liquid” is not defined and there is no degree of flowability attributed to the claimed material. The amount of water present in the material of Peyrichou is seen to meet the limitation “semi-liquid” given that the term is not clearly defined and Peyrichou discloses a material with more than 50% liquid.
Regarding claim 3, the arguments are cumulative to arguments summarized above.
Regarding the rejection of claims 5, 6, 13 and 14 over Peyrichou and further in view of Harris, applicant argues that the media of Harris are cohesive gels, not the homogeneous and lumpy semi-liquid/pasty matrix recited in claim 1 and that Harris does not teach plant processing solubles. These arguments differentiate Harris from claim 1 but do not clearly address the modification proposed in the rejection based upon modification of the water content given Harris’ disclosure and recognition that variation based upon species is recognized in the art.
Regarding the 103 over Harris in view of Nogami and Habib, applicant argues that Harris is a cohesive gel and not a lumpy semi-liquid or pasty substrate formed by mixing plant processing solubles with solid plant co-products and that Harris does not teach or suggest using plant processing solubles as the liquid phase. Note that the claims do not differentiate what material is present in a liquid phase. It remains that Harris as modified above includes solubles and solids and a high water content, thus meeting the limitation of “semi-liquid” inasmuch as the term is defined.
Regarding the rejection of claims 19 and 20, applicant argues that Dreese relates to processing wheat material for use in human food and does not address insect rearing media at all. Claims 19 and 20 are directed to solid plan co-products which are compacted or not compacted. Dreese is relied upon to illustrate that one of ordinary skill would recognize that wheat germ (used in Harris) is processed as either compacted or not compacted (fine or coarse) and would have found it obvious to select either known form to provide the wheat germ in Harris.
Applicant filed an affidavit stating that when feed composition and rearing conditions are held constant and only the texture is varied between a standard “lumpy” substrate and a ground “smooth” substrate, the lumpy condition yields superior outcomes of higher survival rates, greater juvenile mass and shorter growth cycle time. While the evidence has been considered, it is not persuasive. The comparison appears to be between bran that is “unground” and bran that is ground to reduce the particle size. First, there is no indication of what else is present in the media to determine if the comparisons are commensurate in scope with the claimed materials of plant processing solubles. Second, the comparison is only for bran and is not indicative of any and all solid plant co-products. Finally, there is no quantification of the size of the ground bran (reduced particle size) as compared to the unground particle size such that a clear indication can be made as to clearly delineate the disparity between the two forms of bran.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER C MCNEIL whose telephone number is (571)272-1540. The examiner can normally be reached M-F 9-5.
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JENNIFER C. MCNEIL
Primary Examiner
Art Unit 1793
/Jennifer McNeil/ Primary Examiner, Art Unit 1793